JUDGMENT K.C. Gupta, J. - This appeal has been instituted by Bhagwant Singh son of Anup Singh against judgment and order dated 11.10.2001 passed by the Additional Sessions Judge, Amritsar, whereby he was found guilty and convicted under Sections 363, 366A, 506, 343 and 376 Indian Penal Code and sentenced to RI for three years and a fine of Rs. 500/- under Section 363 Indian Penal Code; in default of payment of fine, to further undergo RI for one month; to RI for 5 years and a fine of Rs. 1000/- under Section 366A Indian Penal Code; in default of payment of fine, to further undergo RI for two months; RI for 7 years and a fine of Rs. 2000/- under Section 376 Indian Penal Code; in default of payment of fine, to undergo RI for 3 months; to RI for three months under Section 506 Indian Penal Code and RI for another three months under Section 343 Indian Penal Code. However, all the substantive sentences were ordered to run concurrently. Briefly stated, the facts are that PW-1 Daljit Kaur was student of 10+2 class in Gaggo Bula School on 23.10.1997. On that day about 8.30 P.M., she had gone out of her residential house to answer the call of nature. When she was returning to her house, the appellant, who used to run a Karyana shop at Bus stand of Village Gaggo Buha met her and told her that he would take her forcibly and contract marriage with her and if she raised alarm, she would be murdered. Under the fear of being hurt, she did not raise alarm and sat on the moped of the appellant, who took her to Village Kambo. On the same night, the appellant, his father Anup Singh and mother Parkash Kaur, hatched a conspiracy between themselves and took Daljit Kaur in a car to a Haveli across Harike river. There another co-accused, Bawa Singh, joined them. They kept Daljit Kaur in illegal detention for about five days. During night, the appellant used to commit rape upon her. On 25.10.1997, the appellant and his co-accused Bawa obtained her signatures on some blank papers under threat of death to Daljit Kaur. Daljit Kaur appeared before the Sub Divisional Magistrate, Tarn Taran on 29.10.1997 where her statement was recorded. She expressed desire to go to her parents. During night, the appellant used to commit rape upon her. On 25.10.1997, the appellant and his co-accused Bawa obtained her signatures on some blank papers under threat of death to Daljit Kaur. Daljit Kaur appeared before the Sub Divisional Magistrate, Tarn Taran on 29.10.1997 where her statement was recorded. She expressed desire to go to her parents. However, she did not disclose the factum of rape by the appellant. Case was registered upon the statement of Daljit Kaur, Ex.PA. 2. Daljit Kaur was got medico-legally examined. The rough site plan of the place of occurrence was prepared. Anup Singh and Parkash Kaur were arrested on 11.12.1997. ASI Ashwani Kumar partly investigated the case and arrested the appellant on 31.12.1997. Bawa Singh was also arrested. 3. After completion of the investigation, the present challan was put up in the Court of Judicial Magistrate Ist Class, Tarn Taran, who, in turn, vide his order dated 19.9.1998, committed the case to the Court of Sessions. 4. Having made out a prima facie case, the appellant alongwith his three co- accused were charged under Sections 363, 120-B, 366A, 343 366 and 506 Indian Penal Code vide order dated 22.3.1999, to which they pleaded not guilty and claimed trial. 5. In order to prove the allegations, the prosecution examined nine witnesses. 6. After closure of the prosecution evidence, the statements of the appellant and his co-accused were recorded under Section 313 Criminal Procedure Code, wherein they denied the allegation of the prosecution and pleaded false implication. In defence, they examined DW-1 Kashmir Singh, DW-2 Dilbagh Singh and DW-3 Paramjit Singh. 7. After hearing learned PP for the State and the defence counsel, the Additional Sessions Judge, Amritsar, vide his judgment dated 11.10./2001 found Bhagwat Singh guilty and convicted him under Sections 363, 366A, 376, 506 and 343 Indian Penal Code and sentenced as stated in the earlier part of the judgment vide order of even date. However, he acquitted Anup Singh, Parkash Kaur and Bawa Singh of the charges framed against them. 8. Aggrieved by the said judgment and order, Bhagwant Singh accused had failed the present appeal. 9. I have heard Shri P.S. Hundal, counsel for the appellant, Shri S.C. Bhardwaj, AAG, Punjab, for the respondent and carefully gone through the file. 10. However, he acquitted Anup Singh, Parkash Kaur and Bawa Singh of the charges framed against them. 8. Aggrieved by the said judgment and order, Bhagwant Singh accused had failed the present appeal. 9. I have heard Shri P.S. Hundal, counsel for the appellant, Shri S.C. Bhardwaj, AAG, Punjab, for the respondent and carefully gone through the file. 10. PW-1 Daljit Kaur had admitted in her cross-examination that she had passed matriculation examination in the year 1994-95 from the Government High School, Patti and Ex. D1 was her matriculation certificate and at the time of occurrence, she was about 17 years of age as per date of birth dated 31.5.1980. Again she stated that her date of birth is 10.4.1991 and her date of birth in the matriculation certificate had been incorrectly recorded. Certainly, her date of birth i.e. 10.4.1991 is not supported by any documentary evidence. The alleged occurrence had taken place on 23.10.1997. Thus, she was more than 17 years of age at the time of occurrence. Even her radiological age was determined by conducting her x-ray examination. PW-2 Dr. Tejwant Singh, Medical Officer, stated that he conducted medico-legal x-ray examination of Daljit Kaur on 15.11.1997 and submitted his report, Ex.PB. He further stated that according to his opinion the radiological age of Daljit Kaur was between 15 to 17 years. It is an admitted fact that the age determined by x-ray examination could be two years on either side. Thus, her age could be 17 years or 19 years. In any case, she was more than 16 years of age. 11. PW-5 Balbir Kaur is mother of Daljit Kaur, prosecutrix. She stated that Daljit Kaur was aged about 19 years and at the time of occurrence and was studying in 12th Class in Government School, Gaggo Buha. She further stated that on 23.10.1997 at about 8.30 P.M., her daughter had gone out to answer the call of nature but did not return. She next stated that on enquiry, it was revealed from her nephew Major Singh, who used to run a small shop in the Village near the shop of Bhagwant Singh, appellant, that he had seen a little earlier Daljit Kaur going with the appellant on his moped of red colour. She next stated that on enquiry, it was revealed from her nephew Major Singh, who used to run a small shop in the Village near the shop of Bhagwant Singh, appellant, that he had seen a little earlier Daljit Kaur going with the appellant on his moped of red colour. She further stated that on 27.10.1997 they were told that their daughter had been recovered by police of Police Station, Jhabal and then she was restored to them by the police under the orders of the Court on 29.10.1997. PW-6 Major Singh stated that he was running a small Karyana shop in village Gaggo Buha and on 23.10.997 at about 8 or 8.30 P.M., he was arranging the goods in his shop. He further sated that he knew Bhagwant Singh, who was running a grocery shop in the same village and he saw the appellant going alongwith Daljit Kaur on the moped of rend colour towards Tarn Taran at 8/8.30 P.M. In cross- examination, he admitted that he did not see any knife or Dagger in the hands of the appellant and he had informed the mother of the prosecutrix on the same night. He next stated that he had never visited the Police Station. Thus, PW-6 Major Singh did not state that the prosecutrix Daljit Kaur was crying that she was being taken forcibly by the appellant. The appellant was not having Dagger or knife in his hands. Thus, it appears that the prosecutrix, Daljit Kaur had voluntarily accompanied the appellant by sitting on her (his) moped. If she had been taken forcibly, then she must have raised alarm and PW-6 Major Singh, who is the nephew of Smt. Daljit Kaur must have helped her. It is further in evidence that PW-5 Balbir Kaur came to know on the same time that Daljit Kaur had been taken away by the appellant. However, no case was got registered on the same night or the next day of the occurrence. It was admitted by PW-1 Daljit Kaur that she had appeared before the SDM on 29.10.1997 and her statement was recorded in which she stated that she wanted to go to her parents but she did not state in her statement that she was repeatedly raped by the appellant or was made to sign certain blank papers. It was admitted by PW-1 Daljit Kaur that she had appeared before the SDM on 29.10.1997 and her statement was recorded in which she stated that she wanted to go to her parents but she did not state in her statement that she was repeatedly raped by the appellant or was made to sign certain blank papers. It was admitted by her that in the month of October at about 8.30 P.M., it was quite dark. It does not appeal to reason as to why she went alone to answer the call of nature in the dark. The only inference is that she voluntarily went out under some planning to accompany the appellant. She admitted that the affidavit, Ex.D-14 contained her signatures but she stated that her signatures were obtained forcibly. However, in the said affidavit, she admitted that she had voluntarily married with Bhagwant Singh and was residing with him as his wife. The said affidavit was attested by the Oath Commissioner. The very fact that she did not state to the Sub Divisional Magistrate, when her statement Ex.PL was recorded on 29.10.1997, that she was repeatedly raped by the appellant suggests that it was an after-thought that she was rapped by the appellant. The testimony of PW-7 Dr. Harpoonam Manku, Medical Officer, who medico-legally examined Daljit Kaur on 12.1.1997 does not suggest that she was raped. She stated that no vaginal swab of Daljit Kaur was taken as she was produced before her about 20 days after the alleged sexual intercourse and in between she had changed her clothes several times and had taken several baths. She further stated that she was unable to give a definite opinion that Daljit Kaur had been raped. Her vagina easily admitted two fingers and no tenderness was present and no swelling was also present. It only suggests that she was habitual to inter-course. She admitted that there was no sign of struggle present anywhere on her body. PW-5, in her statement, stated that she and Major Singh had gone to the Police Station to repot about the occurrence but nobody was available in the Police Station. It is difficult to believe that none was available in the Police Station. It is not the case that police did not intentionally record her statement. PW-5, in her statement, stated that she and Major Singh had gone to the Police Station to repot about the occurrence but nobody was available in the Police Station. It is difficult to believe that none was available in the Police Station. It is not the case that police did not intentionally record her statement. This only suggests that she was not bothered about the kidnapping of her daughter or she was consenting party of her daughter going with the appellant. 12. DW-1 Kashmir Singh stated that there was love affair between Daljit Kaur and the appellant and there was a talk of marriage also between them and her mother had agreed but father of Bhagwant Singh did not agree on the ground that they belong to the same caste. He further stated that father of the appellant himself had handed over Bhagwant Singh to the police when he came to know about the occurrence. To the same effect is the statement of DW-3 Paramjit Singh. He stated that his shop was situated adjoining the shop of the appellant and Daljit Kaur was frequent visitor to the shop of Bhagwant Singh and it was known to everybody that there was affair between Bhagwant Singh and Daljit Kaur. He next stated that mother of the prosecutrix intended a marriage between prosecutrix and Bhagwant Singh but father of the appellant had objected and as such, it could not take place. Thus, from the evidence recorded above, it cannot be said by any imagination that Daljit Kaur, prosecutrix was raped. If any sexual inter-course had taken place between Daljit Kaur and the appellant, then the same had taken place with the consent of Daljit Kaur, who was above 16 years of age. Hence, no case under Section 376 Indian Penal Code is made out. 13. Consequently, the appellant is acquitted of the charge levelled against him under Section 376 Indian Penal Code. 14. Counsel for the appellant next contended that no offence under Section 366A was made out because the appellant had not induced Daljit Kaur under the age of 18 years to go from one place or the other with intention that she might be forced or seduced to have illicit intercourse with another person. He further contended that there is no evidence that Dalbir Kaur was forced to have inter-course with other person. He further contended that there is no evidence that Dalbir Kaur was forced to have inter-course with other person. In my opinion, there is force in the contention of learned counsel. Since, there is no evidence that she was forced to have sexual intercourse with another person, so, no offence under Section 366A Indian Penal Code is made out. However, offence under Section 363 Indian Penal Code is made out because it is in evidence that the appellant had kidnapped Daljit Kaur, who was less than 18 years of age from the lawful guardianship of her parents by enticing her away. So, certainly offence under Section 363 is made out. It is also difficult to believe that offence under Section 506 Indian Penal Code is made out because there is no allegation that the appellant was in possession of any Dagger or knife or any fire arm with which he had threatened Daljit Kaur that if she did not sit on the moped, then she would be murdered. It is difficult to believe that from mere empty threat, she was terrified and sat meekly on the moped. Hence, no offence under Section 506 Indian Penal Code is made out. 15. Consequently, the appellant is acquitted of the charge levelled against him under Section 506 Indian Penal Code. 16. However, it is in evidence that she was illegally confined in the Haveli of Bawa. It is also in evidence that the appellant has already undergone 20 months of imprisonment. Therefore, the appellant is let off by making the sentence to be undergone under Section 363/343 Indian Penal Code. 17. With this modification in the sentence, the appeal is dismissed. Appeal dismissed.