Judgment D.P. Singh, J.-Appellants Sharful Haque and Howra Dushad alongwith appellant Shamsher Quraishi have been found and held guilty by common judgment passed in Sessions Trial No. 291 of 19'91 by the Sessions Judge, West Singhbhum at Chaibasa on 3rd August, 2000. Both the appeals arise out of the same judgment and have been taken together for disposal. The learned Sessions Judge ha s held all the appellants guilty under Sections 366A/34 of the Indian Penal Code and sentenced them to serve rigorous imprisonment for six years. Appellant Shamsher Quaraishi has further been held guilty under Section 376 of the Indian Penal Code and sentenced separately to serve rigorous imprisonment for ten years. 2. The prosecution story in brief, is that appellants Shamsher Quaraishi and Howrah Dusadh were known to the family of informant Dukhiya Bhuiyan and used to visit his house frequently. It is alleged that in the evening of 14.9.1989 while the minor daughter of the informant Turky Kumari alongwith her step-mother Nilmani was drawing water from hand pump, at about 8.00 P.M., appellant Howrah Dusadh came and asked her to accompany as appellant Shamsher Quaraishi was waiting for her. Thereafter, Turky Kumari did not return till night when the informant came back to his house. He was informed by Nilmani about the incident. Prosecution case further is that Dhukhiya Bhuiyan searched his daughter in the night and next morning when he was informed by some one that Turky Kumari was seen with appellant Shams her Quaraishi at Jagarnathpur. Thereafter, the matter was reported to the Muffasil Police, Chaibasa and police came into action. According to the prosecution story when the police reached Jagarnathpur at the house of appellant Sharful Haque, the Mama of appellant Shamsher Quaraishi, the girl was recovered with the appellant Shamsher Quaraishi. Police caught all of them and started investigation. The police further seized some silver. ornaments and cloths of Turky Kumari from the house of appellant Sharful Haque. 3. Police recorded the statement of Turky Kumari where she disclosed that she was forcibly taken away by appellant Shamsher Quaraishi and subjected to rape twice upon her. She further alleged that her ornaments were taken away by appellant Shamsher Quaraishi forcibly. The girl was sent for medical examination vide Ext. 3. 3. Police recorded the statement of Turky Kumari where she disclosed that she was forcibly taken away by appellant Shamsher Quaraishi and subjected to rape twice upon her. She further alleged that her ornaments were taken away by appellant Shamsher Quaraishi forcibly. The girl was sent for medical examination vide Ext. 3. The police finally submitted charge sheet against all the three appellants under Sections 366/34 of the Indian Penal Code and under Section 376 of the Indian Penal Code only against appellant Shams her Quaraishi. Their case was committed to the Court of Sessions for trial. The trial court after examining the witnesses found and held all of them guilty under Sections 366A/34 of the Indian Penal Code while appellant Shamsher Quaraishi was further held guilty under Section 376 of the Indian Penal Code and accordingly sentenced them. 4. For better appreciation of the grounds, appeal was filed separately by appellant Shamsher Quaraishi and two others. Appellants Howra Dusadh and Sharful Haque who have preferred Criminal Appeal No. 292 of 2000, it is asserted for appellant Howra Dusadh that the learned trial court has not considered the facts on record that Howra Dusadh has only informed Turky Kumari regarding Shamsher Quaraishi waiting for him and he has not taken active participation in the alleged offence under Section 366A. It is also asserted that on this information, the said Turky Kumari herself accompanied Howra Dusadh to meet Shamsher Quaraishi without any force, abduction or inducement. The memo of appeal further mentions that the information given by appellant Howra Dusadh that appellant Shamsher Quaraishi was waiting for her cannot attribute any criminal intention against the appellant Howra Dusadh. Similarly, it is submitted that presence of appellant Shamsher Quaraishi and the victim Turky Kumari in the house of Sharful Haque does not constitute any offence because appellant Shamsher Quaraishi was related with Sharful Haque and appellant Sharful Haque has not committed any offence by giving shelter to them. So far as the grounds of appeal in Criminal Appeal No. 319 of 2000 is concerned, the plea is taken that Turky Kumari was known to appellant Shamsher Quaraishi, who was seen wandering at Jagarnathpur and he tried to help her giving shelter in the house of his Mama, but he has been falsely implicated in this case. So far as the grounds of appeal in Criminal Appeal No. 319 of 2000 is concerned, the plea is taken that Turky Kumari was known to appellant Shamsher Quaraishi, who was seen wandering at Jagarnathpur and he tried to help her giving shelter in the house of his Mama, but he has been falsely implicated in this case. The memo of appeal further mentions that the charge under Section 366A of the Indian Penal Code fails because the girl was aged 18 years and she has herself gone with appellant Shamsher Quaraishi without any inducement or force etc. It is also asserted that the allegation of rape fails in absence of any medical evidence and non-examination of the I.O. as well as the doctor. Much stress has been led that the girl was aged 18 years and used to have sexual intercourse prior to this occurrence showing that her hymen having old rupture with no sign of rape. 5. The learned counsel appearing for the appellants submitted that the evidence available in the records on the basis of which conviction has been made contradicts the findings. The learned counsel further submitted that the contradictory statement of P.W. 1, P.W. 2 and P.W. 3 goes to show that the entire prosecution story is false and unbelievable. My attention was drawn towards the facts that though P.W. 1 Turky Kumari is said to be minor, but she has been admitted in her cross-examination vide para-15 that she was engaged with one Madhu Bhuiyan before the occurrence and she was married with him for two years. It was also pointed out that the girl was not happy with the treatment given by her stepmother, so she has fled away from the house. My attention was further drawn towards vide para-21 of the cross-examination whether she was admitted that she was not used to sexual intercourse and even then no sign of rape she has got old rupture hymen. He further pointed out vide para-29, that bleeding was started after rape but this evidence has not been supported by the medical evidence. The learned counsel further pointed out that P.W. 2 vide para-7 admitted that Turky Kumari was married since before and on the date of the occurrence vide para-11 Turky has worn ornaments anti good clothes because of Karma festival. The learned counsel further pointed out that P.W. 2 vide para-7 admitted that Turky Kumari was married since before and on the date of the occurrence vide para-11 Turky has worn ornaments anti good clothes because of Karma festival. In this background, the learned counsel further pointed out that the informant has failed to even suggest when the said Turky Kumari was born and what was her exact age. According to the learned counsel, all these allegations are admittedly false. 6. Learned A.P.P. appearing on behalf of the State submitted that the materials on record clearly shows that appellant Howra Dusadh induced Turky Kumari to go with appellant Shqmsher Quaraishi from where she was forcibly taken away and subjected to sexual intercourse by appellant Shamsher Quaraishi in the house of Sharful Haque. Therefore, all the three appellants were rightly convicted for the alleged offence. Learned A.P.P. further submitted that in view of the specific allegation of forceful sexual intercourse by appellant Shamsher Quaraishi he deserves to be convicted under Section 376 of the Indian Penal Code. 7. While going through the evidence on record, I find that on the day of the occurrence, Turky Kumari in presence of P.W 2 went without any inducement or force used by appellant Howra Dusadh to meet appellant Shamsher Quaraishi. This fact is clear on the record and even from the evidences of P.W 1, P.W 2 and PW 3 that on that day appellants Howra Dusadh and Shamsher Quaraishi were known to the family of the informant. Therefore, appellant Howra Dusadh without clear evidence that he knowingly misled Turky Kumari to go to meet appellant Shamsher Quaraishi. I find that the offence under Section 366A/34 of the Indian Penal Code cannot be made out against appellant Howra Dusadh. Similarly in case of appellant Sharful Haque, the Mama of appellant Shamsher Quaraishi, I do not find any evidence on record that he also knew about the alleged intention of appellant Shamsher Quaraishi to take away Turky Kumari from her lawful guardianship of Informant Dukhiya Bhuiyan. Appellant Sharful Haque residing at Jagarnathpur could not have the idea and neither any evidence is available on record that he actually was having common intention to kidnap or abduct Turky Kumari for any illegal purpose. Appellant Sharful Haque residing at Jagarnathpur could not have the idea and neither any evidence is available on record that he actually was having common intention to kidnap or abduct Turky Kumari for any illegal purpose. Accordingly, I find and held that appellants Howra Dusadh and Sharful Haque may not be a party of any offence under Section 366A/34 of the Indian Penal Code. In the result, I find and held that Criminal Appeal No. 290 of 2000 has got merit and deserves to be allowed. The conviction of appellants under Section 366A/34 of the Indian Penal Code is hereby set aside and they are discharged from liabilities of their bail bonds. 8. So far as the complicity of appellant Shamsher Quaraishi of Criminal Appeal No. 319 of 2000 is concerned, other evidences has to be scrutinized. This has clearly come on the record that appellant Shamsher Quaraishi was found with Turky Kumari in the house of appellant Sharful Haque on 16.9.1989. The allegation against him is that he misled Turky Kumari and got her moving out of her lawful guardianship of P.W 3 and brought her to Jagarnathpur with intention to commit rape. The victim Turky Kumari has also alleged that she was subjected to rape in the night of 15.9.1989. This witness (P.W 1) has been examined on 16.9.1989. The story of rape is not supported with the medical evidence produced by the prosecution vide Ext. 3. According to the report, the victim was examined at 1.00 P.M. on 16.9.1989 and the doctor did not find any injury on her body or her private parts. She further opined that hymen was found ruptured with old tear and no positive sign of rape. In this background, when the statement of P.W1 is considered vide para-29 that during the sexual intercourse, blood has came out from her private parts and she was raising alarms. She further asserted that her petticoat got stained with blood etc. No such petticoat has been seized and produced by the police. In such circumstances, where according to the victim, blood has come out, the doctor gives opinion that hymen was having old rupture and no sign of rape could be seen by her next day i.e. within 12.00 hours makes the whole story of rape doubtful. No such petticoat has been seized and produced by the police. In such circumstances, where according to the victim, blood has come out, the doctor gives opinion that hymen was having old rupture and no sign of rape could be seen by her next day i.e. within 12.00 hours makes the whole story of rape doubtful. This opinion is further based on the fact that the girl has admitted in cross-examination vide para-13 that she was married with Madhu Bhuiyan and she has been engaged with said Madhu vide para15 prior on the day of the occurrence. Her statements vide para-10 that before the said rape, she has never been subjected to any sexual intercourse. Therefore, normally if first time a virgin is subjected to sexual intercourse and as per her own version she started bleeding injuries, the rupture of hymen must be there, which could not have been overlooked by the doctor. I further find that the conduct of the witnesses i.e. PW. 2 and PW 3 when they knew that Turky Kumari has not returned in the night of 14.9.1989, they waited till 15.9.1989 to inform the police while they knew that with whom she has gone. I further find that in absence of the I.O. and the doctor defence stand highly prejudiced because their evidence could have given a clear picture regarding the alleged rape committed by appellant Shamsher Quaraishi and what statement the police has recorded just after she was recovered from the house of Sharful Haque. 9. I have further gone through the impugned judgment minutely and carefully. The learned lower court having relied the statement of PW 1, PW 2 and PW 3 has held appellant Shamsher Quaraishi guilty under Sections 366A/376 of the Indian Penal Code. However, in view of the fact that these witnesses themselves contradicted their earlier statements made before the police on material points during the trial indicating that Turky Kumari went with appellant Shamsher Quaraishi without any inducement, threat etc. in the evening of 14.9.1989, shows that offence under Section 366A of the Indian Penal Code is not made out adequately. Regarding the alleged commission of rape on Turky in the night of 15.9.1989, her version does not stand corroborated with probable medical evidence and missing probable material evidence, which the police could have collected like bloodstained petticoat etc. in the evening of 14.9.1989, shows that offence under Section 366A of the Indian Penal Code is not made out adequately. Regarding the alleged commission of rape on Turky in the night of 15.9.1989, her version does not stand corroborated with probable medical evidence and missing probable material evidence, which the police could have collected like bloodstained petticoat etc. The non-examination of the Investigating Officer and the doctor further prejudiced the prosecution case. Accordingly, I find myself unable to agree with the finding of the learned lower court in given facts. 10. Having regards to the abovementioned facts and circumstances of the case, I find that the present appeal has also got merit and deserves to be allowed. In the result, conviction of appellant Shamsher Quaraishi under Sections 366A/34 and 376 of the Indian Penal Code is liable to be set aside. Accordingly, this appeal is allowed and the appellant stands discharged from the liability of his bail bonds.