P. S. NARAYANA, J. ( 1 ) THE appellant-accused preferred the present appeal aggrieved by the conviction and sentence passed by the Special Judge for the Trial of Offences under SCs and STs (Prevention of Atrocities) Act-cum- vi Additional Metropolitan Sessions Judge, secunderabad, on 22-10-2001, in Sessions case No. 244 of 1999. ( 2 ) SRI G. Purushotham Rao, Counsel representing the appellant had pointed out that as per the version of the prosecution, p. W. 1 was aged only about 14 years at the time of incident, and the medical evidence would clearly go to show that there were no signs of rape at all as against P. W. 1, and this aspect was not appreciated in a proper perspective by the learned Judge. The learned Counsel also would submit that the version of the prosecution that the minor girl was forcibly taken away, and that she was married and that subsequent thereto, the accused had committed rape on her, even as deposed by P. W. 1, definitely cannot be believed, in view of the inherent infirmities in the version of the prosecution. The learned counsel would submit that, none concerned with the alleged series of incidents had been examined, except P. W. 1, P. W. 2 mother of p. W. 1 and P. W. 3, a close relative of p. Ws. 1 and 2. The learned Counsel would submit that in the absence of any material to show that P. W. 1 was forcibly taken away, the offence under Section 366 IPC had not been made out and the exaggerated version of P. W. 1 in relation to commission of offence of rape also cannot be believed, especially, in the light of the medical evidence. The learned Counsel also had drawn the attention of this Court to the evidence available on record and would contend that the findings recorded by the learned Judge definitely cannot be sustained. The learned Counsel also had drawn the attention of this Court to the evidence available on record and would contend that the findings recorded by the learned Judge definitely cannot be sustained. ( 3 ) PER contra, the learned Additional Public prosecutor would submit thatthe evidence of p. W. 1 in this regard would be more than sufficient and she had categorically deposed about the incident and though she is a child witness, she is sufficiently grown up since on the date of incident she was aged about 14 years, on the date of examination she was aged about 16 years and hence, her evidence can be definitely relied upon and thus, the prosecution had established the case beyond all reasonable doubt. ( 4 ) HEARD the counsel. Perused the material available on record and also the findings recorded by the learned Judge. ( 5 ) THE Inspector of Police, Chatrinaka police Station, Hyderabad filed charge sheet against A-1 and A-2. A-2 was found not guilty and hence, A-1 alone had preferred the present appeal. The accused were charge sheeted under Section 366, 376, 366 read with Section 109 and 376 read with 109 IPC. ( 6 ) THE case of the prosecution, in brief, is as follows: b. Swaroopa (P. W. 1) at the relevant point of time was aged about 14 years and she was working as maid-servant along with her mother B. Laxmi-P. W. 2. A-1 developed intimacy with the said girl and both fell in love. A-2 is a friend of A-1 and he used to pass messages between A-1 and P. W. 1. On 31-8-1998 at 6. 00 p. m. , when P. W. 1 was alone in the house, A-1 and A-2 came, took her to Puranapool to the house of sister-in-law of A-1 by name one Radhi, with a false promise to marry. On 31-8-1998, A-1 committed rape against her will in the house of the said Radhi, with a false promise to marry her. On 1-9-1998, the accused took her to a temple, followed by one Prakash, radha, Narasamma and Varalu, and gave a saree to her in the presence of the said -persons. The pujari had performed the marriage of P. W. 1 with A-1, and A-1 tied mangalasutram to her. On 1-9-1998, the accused took her to a temple, followed by one Prakash, radha, Narasamma and Varalu, and gave a saree to her in the presence of the said -persons. The pujari had performed the marriage of P. W. 1 with A-1, and A-1 tied mangalasutram to her. After the marriage, a-1 took P. W. 1 to the house of one Raji at puranapool and spent there as wife and husband. On 2-9-1998, both the accused along with Radha forcibly removed her mangalasutram and asked her to go to her house and threatened her not to reveal the incident to anybody. On 2-9-1998 at 2. 00 p. m. , P. W. 1 reported the matter orally to Chatrinaka Police Station. Her statement was reduced into writing by the Inspector of police, and a case in Crime No. 277/1998 under Sections 366 and 376 read with 109 ipc was registered. P. Ws. 1 to 3 were examined, their statements were recorded, p. W. 1 was sent for medical examination and also for age determination and her age was determined as 14 years. The Inspector of police arrested the accused on 10-9-1998 and sent A-1 for medical examination and produced him on 11-9-1998 for judicial custody. ( 7 ) THE case was registered as P. R. C. No. 11 of 1998 and after committal, the same was made over to the Special Judge for the trial of offences under SCs and STs (POA) act-cum-VI Additional Metropolitan Sessions judge, Secunderabad. The learned Judge recorded the evidence of P. Ws. 1 to 6 and marked Exs. P-1 to P-7 and ultimately, came to the conclusion that the appellant-A-1 had enticed P. W. 1, who was below the age of 16 years, from the lawful custody of her parents and had intercourse with her and thus, A-1 had committed the offence under sections 363 and 376 IPC and that A-1 was found not guilty for the offence under section 366 IPC and he was acquitted. But however, A-1 was sentenced to undergo rigorous Imprisonment for a period of seven years and to pay a fine of Rs. 500/- in default, to undergo Simple Imprisonment for a period of 15 days for the offence under Section 376 ipc and also to undergo Rigorous imprisonment for a period of three years and to pay a fine of Rs. 500/- in default, to undergo Simple Imprisonment for a period of 15 days for the offence under Section 376 ipc and also to undergo Rigorous imprisonment for a period of three years and to pay a fine of Rs. 500/- in default, to undergo simple imprisonment for a period of 15 days for the offence punishable under Section 363 ipc. ( 8 ) SECTION 361 IPC: Kidnapping from lawful guardianship:-"whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from unlawful guardianship. "section 363 IPC: Punishment for kidnapping: whoever kidnaps any person from India, orfrom 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. ( 9 ) EX. P-1 statement of P. W. 1 reads as hereunder:"myself, my mother Lakshmi and my father Anji Reddy and my younger sister deepa, all of us, are residing in our house at Bayyalalnagar. My father anjireddy is pulling Rickshaw. In front of our house, Siva Kumar and his elder brother Prakash are residing. My mother and myself are doing work in some houses. I got acquaintance with Siva kumar who is near to our house. On 31 -8-1998, i. e. , on Monday evening, at about 6. 00 p. m. , I was alone at my house. Then, Siva Kumar came and told me that we will go to Puranapool, and took me on cycle. Night, we stayed in the house of his sister-in-law named radha. That night Siva Kumar spoiled me and committed rape. Tuesday on 1-9-1998, evening at 5. 00 p. m. , Siva kumar married me at the temple in puranapool. Prakash, Radha, Varalu, narasamma were present there. Pujari performed the marriage. Siva Kumar tied Mangalasutram in my neck. Night we stayed in the house of a woman named Raji, in Puranapool. Today morning, they removed the mangalasutram and sent me to my house. I told with my mother about the matter occurred. My mother brought me to the police station. I informed the matter. Pujari performed the marriage. Siva Kumar tied Mangalasutram in my neck. Night we stayed in the house of a woman named Raji, in Puranapool. Today morning, they removed the mangalasutram and sent me to my house. I told with my mother about the matter occurred. My mother brought me to the police station. I informed the matter. The statement read over and explained in vernacular language and admitted to be correct. " ( 10 ) THE evidence of P. W. 1 is crucial. On the date of examination, she was aged about 16 years and on the date of incident she was aged about 14 years. She deposed that she knows A-1 and A-2 who are residing in the same locality. She deposed that at about three years back, she was taken by A-1 and a-2 forcibly to the house of one Radha situated at Puranapool and they were in drunken condition and A-1 committed rape against her and that on the next day morning of the incident, she was taken by the accused to the sisterfs house of A-1 situated at Bayalalnagar and they stayed for one day there, A-1 raped her there and that on the next day, the accused took herto one temple at Puranapool, married her forcibly and after marriage, he took her to his friend s house at some unknown place. She further deposed that the sister of A-1 Shivakumari came and informed that the brother of A-1 and his wife were taken by police, until and unless P. W. 1 approached the police they will not release them and from there, she was taken charminar Bus Stop and from there, she went to her house and then she informed the matter to her parents and police recorded her statement, on which she put her thumb impression. Ex. P-1 is her statement recorded by the police and she was sent to the hospital for medical examination and police recorded her statement. This witness also deposed that she had stated to the police that on 31 -8-1998 when she was alone in the house at about 6. 00 p. m. , A-1 came and took her to the house of his sister-in-law by name Radha and she knows that A-1 takes her to puranapool at the residence itself, since he informed her about the same. 00 p. m. , A-1 came and took her to the house of his sister-in-law by name Radha and she knows that A-1 takes her to puranapool at the residence itself, since he informed her about the same. She also deposed that it is not true to suggest that she had not stated before the police as in 161 statement and in Ex. P-1 that A-1 was in drunken condition and committed rape against her, and it is not true to suggest that she had stated anything about A-2 in ex. P-1. She deposed that she met Radha at puranapool in her house and she is black in complexion and short in height. She deposed thata-1 informed the relationship with Radha and on enquiry by Radha, she informed her name and told that she was brought by A-1 and she did not inform Radha that A-1 will marry her only in the house of his sister whose name she did not know. She deposed that the temple where A-1 married her is in puranapool and she returned home on 3-9-1998 at 12 noon and after returning home, she went to the police station at 6. 00 p. m. , she was examined by the doctor and she informed the incident to the doctor and her mother and uncle accompanied her to the police station and she had not stated in her statement-Ex. P-1 that her uncle accompanied her to the police station and this witness denied certain suggestions. ( 11 ) THE evidence of P. Ws. 2 and 3 is only in relation to the post-incident events. P. W. 4 is the doctor and he had examined P. W. 1 and on physical, dental and radiological examinations, the doctor is of the opinion that the age of P. W. 1 is about 14 years. Ex. P-2 is the age certificate of victim-P. W. 1. This witness also deposed that Dr. Narayana reddy examined A-1 on 10-9-1998 and opined that there is nothing to suggest that a-1 is not capable of performing the sexual act. Ex. P-3 is the potency certificate. ( 12 ) THE evidence of P. W. 5-doctor who had examined P. W. 1 is of some importance. This witness also deposed that Dr. Narayana reddy examined A-1 on 10-9-1998 and opined that there is nothing to suggest that a-1 is not capable of performing the sexual act. Ex. P-3 is the potency certificate. ( 12 ) THE evidence of P. W. 5-doctor who had examined P. W. 1 is of some importance. This witness deposed that on examination, general condition of P. W. 1 was normal, no injuries were found on her and on local examination, external genital was healthy, there was found no injury and her hymen was intact. Ex. P-4 is the preliminary report. According to the F. S. L. Report, semen and spermatozoa were not detected on slides. There is no definite evidence of intercourse and Ex. P-5 is the final opinion and Ex. P-6 is the F. S. L. Report. ( 13 ) P. W. 6 is the Inspector of Police who had deposed about the details of investigation. This is the evidence available on record. ( 14 ) THE version of the prosecution is that the accused with a promise to marry had taken away this minor girl-P. W. 1 from the lawful custody of the parents on the fateful day and A-1 committed rape. As per the evidence of P. W. 1, it appears that A-1 had resorted to have sexual intercourse at least more than once. It is pertinent to note that the victim-girl was aged about 14 years. The presence or absence of external injuries may not be very material in the light of time gap in between the medical examination and the alleged act of sexual intercourse. Here is a case where a girl of 14 years age had been examined by the doctor and the doctor had given opinion that there is no definite evidence of intercourse and also the doctor specifically deposed that her hymen was intact. The grown up accused No. 1 -appellant, if resorted to the sexual intercourse as spoken to by p. W. 1 at least more than once, especially in the light of the age of P. W. 1, due to the penetration the hymen would not have been intact and in this view of the matter, the medical evidence would assume lot of importance. Hence, this Court is of the opinion that in the light of the medical evidence, it is highly doubtful whether there was completion of offence under Section 376 IPC as such. ( 15 ) AS far as taking of P. W. 1 away from the lawful custody of her parents , again the evidence of P. W. 1 alone is available and none others, either concerned with the celebration of marriage or any other person concerned with post-incident events had been examined in this regard. Absolutely, there is no evidence except the evidence of P. W. 1. As already referred to supra, P. W. 1 had deposed in an exaggerated way. It may be thata-1 was fond of P. W. 1 and had intention to have marital tie with P. W. 1, the evidence on record would definitely establish only up to this extent and nothing more and nothing beyond. An acquittal had been recorded by the learned Judge as far as A-2 is concerned for want of legally acceptable evidence. In the absence of legally acceptable evidence, it cannot be said that A-1 had taken away p. W. 1 from the lawful custody or her parents as spoken to by P. W. 1. However, in the light of the evidence of P. W. 1. there is no completed offence of rape attracting section 376 IPC as such. But, however, in the light of the evidence of P. W. 1. though uncorroborated in this regard, the case under section 354 IPC had been made out for outraging the modesty of a woman since the age of girl was 14 years at the relevant point of time. Hence, taking into consideration the facts and circumstances, the conviction and the sentence recorded under Sections 363 and 376 IPC are hereby set aside. though uncorroborated in this regard, the case under section 354 IPC had been made out for outraging the modesty of a woman since the age of girl was 14 years at the relevant point of time. Hence, taking into consideration the facts and circumstances, the conviction and the sentence recorded under Sections 363 and 376 IPC are hereby set aside. ( 16 ) IN the result, taking into consideration family circumstances of the appellant-accused that his sick mother is depending on him, and also other circumstances, dependants depending on him, the conviction and the sentence imposed by the Special judge for the Trial of Offences under SCs and STs (POA) Act-cum-VI Additional metropolitan Sessions Judge, secunderabad, on 22-10-2001 in Sessions case No. 244 of 1999 against the appellant-accused under Section 363 and 376 of the indian Penal Code are hereby set aside and however, the accused is convicted under section 354 of the Indian Penal Code and sentenced to undergo Rigorous imprisonment for a period of two years. It is brought t the notice of this Court that the appellant-accused No. 1 had already undergone the modified sentence of imprisonment imposed by this Court. In view of the same, the Criminal Appeal is partly allowed and the appellant-accused shall be set at liberty forthwith.