JUDGMENT Deoki Nandan Prasad, J. 1. Both the appeals were heard together and are being disposed of by this common judgment. 2. Both the appellants preferred these appeals against the judgment of conviction and sentence dated 20-8-2000 passed by 2nd Assistant Sessions Judge, Gumla in Sessions Trial No. 60 of 1999 whereby and whereunder the learned Assistant Sessions Judge convicted the appellants under Sections 366A and 376 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for ten years on each count. 3. The case of the prosecution in brief is that the informant Jivan Minj submitted a written report before the police on the basis of which, first information report was lodged alleging therein that on 11-9-1998 at about 9.30 P.M. his sister Anjela Minj had gone to the house of one Badri Prasad for witnessing Television along with her cousin sister Veena Minj. While she was returning home, the appellants intercepted and the victim Anjela Minj was taken away on the point of knife. They had also threatened Veena Minj that if she will disclose the matter to any body, she will have to face the consequences. It is further alleged that Veena Minj did not disclose the said story of kidnapping by the appellants to any person but on 13-9-1998 when appellant Badal Toppo came to take the cloth of Anjela Minj from Jyoti Minj and thereafter the matter was disclosed and Veena Minj narrated the incident to the informant who lodged the first information report. 4. The police investigated into the case and submitted charge sheet. Witnesses were examined from both sides. After hearing both sides, the learned Assistant Sessions Judge convicted and sentenced the appellants in the manner as stated above, hence this appeal. 5. At the very outset, the learned counsel appearing on behalf of the appellants submitted that both the appellants have been dragged falsely in the case as no such occurrence took place in the manner as alleged rather there was a love affair with appellant Alam and Anjela Minj from before, which will be evident from the love letters (Ext. 1 series) which are admitted documents as the victim (P.W. 1) admitted to have written those letters to appellant Alam and actually she had called the appellant Alam and had gone with him willingly. 1 series) which are admitted documents as the victim (P.W. 1) admitted to have written those letters to appellant Alam and actually she had called the appellant Alam and had gone with him willingly. It is further submitted that the victim Anjela Minj is also a major girl which has been observed and held by the Trial Court itself in paragraph 8 of the judgment. Therefore, the offence under Section 366A as well as the offence under Section 376 of the Indian Penal Code are not applicable in the facts and circumstances of the instant case. The learned counsel further argued that the Doctor who examined the victim has not found any sign of rape and she was found aged about 17 to 18 years and the victim being the major is a consenting party and she had been with appellant Alam with her own will. It is further argued that appellant Badal Toppo has falsely been implicated in the case, as there is no allegation against him for the alleged offence. 6. P.W.1, the victim herself, admitted in her evidence that the name of Badal Toppo was given at the instance of her parents. It is further argued that the victim Anjela Minj had already filed a petition before the Court below earlier on 26-9-1998 admitting that the accused persons have been dragged under conspiracy and they have been falsely Implicated in the case. Therefore, she intended to get her statement recorded under Section 164 of the Code of Criminal Procedure and that application was filed duly signed by the lawyer concerned who has also deposed as D.W. 2 as Anjela Minj had put her signature on the said application and, therefore, the whole prosecution case is false and is not believable. It is further argued that both the appellants have been in custody since 14-9-1998 and 7-10-1998 respectively and, therefore, they have also sufficiently been punished. 7. P.W. 1, the victim, claimed in her examination-in-chief that she was taken away by the appellants and thereafter she was kept at different places and she was also raped. At the same time, she admitted that the name of the appellant Badal Toppo was disclosed at the instance of her parents. She also admitted to have written love letters (Exts. 1 to 1/3) to appellant Alam. At the same time, she admitted that the name of the appellant Badal Toppo was disclosed at the instance of her parents. She also admitted to have written love letters (Exts. 1 to 1/3) to appellant Alam. She further admitted that she had stayed with the mother of Alam and she used to go around with the mother of Alam for selling bangles and even she used to visit the market for selling the bangles, but it is not known as to why she has not objected or raised any alarm about the story of kidnapping or committing, rape forcibly on her. Admittedly she remained silent and also used to visit different places including the market with the mother of appellant Alam for several dates. Furthermore she claimed to disclose the name of appellant Badal Toppo later on, on the advice of her parents. 8. P.W. 2 is the Doctor who examined the victim but has not found any injury on the person of the victim including on her private parts. He has not opined about any sign of rape. 9. P.Ws. 3 and 4 are the hearsay witnesses. P.W. 5 stated that Badal Toppo had come to take the cloth of Anjela Minj and thereafter the story was narrated by Veena Minj. She is also not an eye-witness of the occurrence. Admittedly Veena Minj has been residing just adjacent to her house. P.W. 6 Veena Minj claimed to be present with the victim at the time of occurrence but admittedly she kept mum about the incident for which no cogent explanation has been assigned as to why she remained silent for two days. She further deposed that appellant Badal Toppo is a married boy having a son. P.W. 7 claimed to have got the information from Jyoti Minj. 10. P.W. 8 is the informant, who is also a hearsay witness. P.W. 9, the mother of Anjela Minj (P.W. 1) is also not an eyewitness of the occurrence. P.W. 10 has been declared hostile by the prosecution, as he has not supported the prosecution case in any manner. 11. P.W. 11 is the Investigating Officer of the case. He admitted that Badri Prasad has not been examined by him. Obviously there is an allegation that Anjela Minj and Veena Minj had gone to the house of Badri Prasad for witnessing Television at the relevant time. 12. 11. P.W. 11 is the Investigating Officer of the case. He admitted that Badri Prasad has not been examined by him. Obviously there is an allegation that Anjela Minj and Veena Minj had gone to the house of Badri Prasad for witnessing Television at the relevant time. 12. Two witnesses were examined on behalf of the defence, who are the formal witnesses. 13. Having gone through the evidence collected, it is apparent that the victim Anjela Minj was found to be major at the relevant time and this fact has been clearly held by the Trial Court in Paragraph-8 of the judgment by observing hereinunder :-- "However, from the medical evidences and exhibits of the defence it appears that the victim Anjela Minj was major at the time of incidence and, thus, charges under Section 363 of the Indian Penal Code is not maintainable against the accused persons". 14. Since the victim Anjela Minj has been declared to be major by the Trial Court, therefore, the offence under Section 366A of the Indian Penal Code will not be applicable in the instant case which is relating to minor girl and, therefore, in my view, the offence under Section 366A of the Indian Penal Code is not made out in the facts and circumstances of the case. Thus the order of conviction and sentence thereunder is set aside. However, there is an allegation by the victim about committing rape forcibly by the appellants and her evidence on this score appears to be intact. Thus it is evident that the offence under Section 376 of the Indian Penal Code is made out against both the appellants. 15. In the result I find that the learned Trial Court rightly convicted the appellants for the offence under Section 376 of the Indian Penal Code and, accordingly, the conviction made thereunder is confirmed. 16. So far the sentence is concerned, it appears that both the appellants, namely, Badal Toppo and Md. Alam are in custody since 14-9-1998 and 7-10-1998 respectively and they have sufficiently been punished. Thus, in my view, the period of sentence already undergone by both the appellants in jail custody will meet the ends of justice. 17. In the result, both the appellants are sentenced to the period already undergone by them in jail custody. Alam are in custody since 14-9-1998 and 7-10-1998 respectively and they have sufficiently been punished. Thus, in my view, the period of sentence already undergone by both the appellants in jail custody will meet the ends of justice. 17. In the result, both the appellants are sentenced to the period already undergone by them in jail custody. Since both the appellants are in custody, they are directed to be released forthwith, if not wanted in any other case. 18. The appeal is dismissed with the modification in the sentence only.