Judgment Vinod K.Sharma, J. 1. By way of present appeal the appellant has challenged his conviction and sentence awarded under Sections 366-A and 376 of the Indian Penal Code. 2. FIR No. 121 dated 2.7.2004 was registered under Sections 363, 366 and 120-B IPC at Police Station Adampur, on the statement of Subhash Chander son of Ram Partap, resident of village Sishwal, District Hisar, on the allegations that he has two daughters and two sons. 3. It was the case of prosecution that his elder daughter Sumitra appeared in 10+2 examinations and was minor. She was said to be studying at Hisar and had come in the village after examinations. On 26.6.2004 she was not found available in the house despite search. It was further alleged in the FIR that his son, who was studying at Hisar was friend of Sunil son of Naresh Kumar, resident of Bhuna and was running a Mobile and STD shop at Bishnoi Colony, Gali No. 1 Hisar. The co-accused Vinod son of Jai Singh was his partner and another co-accused Parmod son of Puran Singh was his friend. It may be worthwhile to mention here that Vinod son of Jai Singh and Parmod Singh son of Puran Singh stand acquitted of the charges framed against them. 4. It was also the case of the prosecution that Sunil appellant used to come to meet Sanjay in the house of his brother and on personal enquiry the complainant was confident that his daughter Sumitra has been taken away by Sunil son of Naresh in connivance with his elder sister, Parmod and Vinod. 5. On the allegations referred to above, FIR No. 121 dated 2nd July, 2004 was registered under Sections 363/366 and 120-B IPC. On the basis of the evidence collected by the prosecution, all the accused were charged under Sections 363, 366 and 120-B IPC by the learned Sessions Judge, Hisar vide order dated 25th September, 2004. The accused pleased not guilty and claimed trial. 6. In order to prove its case, the prosecution examined the following witnesses : PW No. Name of the PW Purpose 1. HC Dogar Singh He is a formal witness and tendered an affidavit in his evidence 2. ASI Krishan Lal He recorded formal FIR 3. C. Krishan Kumar He delivered the special report to the higher officers. 4. 6. In order to prove its case, the prosecution examined the following witnesses : PW No. Name of the PW Purpose 1. HC Dogar Singh He is a formal witness and tendered an affidavit in his evidence 2. ASI Krishan Lal He recorded formal FIR 3. C. Krishan Kumar He delivered the special report to the higher officers. 4. Sahib Ram He is a formal witness and tendered an affidavit in his evidence. 5. C. Raju Draughtsman He prepared the scaled site plan of the place of occurrence. 6. Subhash Chander son of Shri Ram Partap He is father of the prosecutrix. 7. Mahabir Singh son of Kanshi Ram He is maternal uncle of the prosecutrix. 8. Dr. R.J. Bishnoi He medico-legally examined Naresh accused in this case. 9. Dr. Himani Kansal She medico-legally examined prosecutrix in this case. 10. ASI Ram Niwas He partly investigated this case. 11. S.I. Sohan Singh He also partly investigated this case. In addition, the following documents were also tendered in evidence :- Ex. P-1 Affidavit of HC Dogar Singh Ex. P-2 Application of father of prosecutrix Ex. P-3 FIR Ex. P-4 Endorsement Ex. P-5 Affidavit of C. Sahib Ram Ex. P-5 Scaled sit plan of the occurrence. Ex. P-6 Certificate of Secondary School Examination of prosecutrix. Ex. P-7 Recovery Memo of prosecutrix. Ex. P-8 Memo of handing over of prosecutrix Ex. P-9 Application for medical examination of Sunil Kumar accused. Ex. P-10 MLR of Sunil accused Ex. P-12 Application for medical examination of prosecutrix. Ex. P-15. MLR of prosecutrix Ex. P-16 Recovery memo of clothes etc. of prosecutrix. Ex. P-17 Recovery memo of clothes etc. of accused. Ex. P-18 FSL report. Ex. P-19 Death certificate of prosecutrix. Ex. P-20 PMR of prosecutrix. The accused did not lead any evidence in defence. 7 In the evidence it was proved that on 7th July 2004 Sunil accused was found standing in front of a Dharamsala at Haridwar, where he was apprehended. On interrogation, he disclosed that Sumitra was present in is room at Sardulpuram colony, Haridwar. On the basis of the disclosure statement made by the appellant, the prosecutrix was found in a room, where she was found to be weeping and disclosed that Sunil, Parmod and Vinod had done a bad act with her. The statement of the prosecutrix was recorded by the police in the presence of Mahabir, PW-8. On the basis of the disclosure statement made by the appellant, the prosecutrix was found in a room, where she was found to be weeping and disclosed that Sunil, Parmod and Vinod had done a bad act with her. The statement of the prosecutrix was recorded by the police in the presence of Mahabir, PW-8. Thereafter she was taken to General Hospital, Hisar, where she was medico-legally examined. 8. Though the prosecutrix supported the prosecution version, however, on account of suicide having been committed by her, she could not be examined. 9. The plea of the appellant that due to non-examination of the prosecutrix he was entitled to acquittal of the charge, was not accepted by the learned trial Court on the ground that merely because the victim was dead and consequently, could not be examined, cannot be a ground to acquit the accused. 10. The plea of delayed lodging of the FIR was also rejected by the learned trial Court keeping in view the nature of offence committed by the accused. His further plea that there was no injury marks on the person of the prosecutrix, was also of no avail to the appellant as presumption under Section 148-A of Indian Evidence Act cannot be drawn especially when she made a statement alleging rape against the appellant. 11. Thus on the evaluation of the evidence produced on record, accused Parmod and Vinod were acquitted the charge whereas the appellant Sunil was convicted under Sections 366-A and 376 IPC. 12. Learned counsel appearing on behalf of the appellant contends that in the present case the age of the prosecutrix was admittedly 17 years and 9 months on the date of alleged occurrence. 13. Learned counsel for the appellant has also contended that no offence under Section 376 IPC against the appellant is made out as the evidence on record clearly proved that she was a consenting party to the act of intercourse. 14. It may be noticed that in the present case, the prosecution story is that the prosecutrix was raped by the accused in the house itself. However, in support of the alleged rape having been committed by the appellant, no complaint, whatsoever, was made by the prosecutrix to any member of her family rather she chose to go with the accused to Haridwar, where she was recovered after a number of days. 15. However, in support of the alleged rape having been committed by the appellant, no complaint, whatsoever, was made by the prosecutrix to any member of her family rather she chose to go with the accused to Haridwar, where she was recovered after a number of days. 15. Even as per the prosecution case, it is proved that the prosecutrix was recovered from a Dharamsala in Haridwar from the custody of accused Sunil which stands established from the testimony of PW-8 Mahabir, PW-10-ASI Ram Niwas and PW-11 Sohan Singh, Sub Inspector. Mahabir PW-9 in his statement has clearly stated that the incident of rape was narrated by the prosecutrix immediately after return from Haridwar. 16. The factum of prosecutrix even lived for a number of days with the accused-appellant coupled with the fact that no injury mark has been found on her person and medico-legal evidence which did not support the commission of rape on the prosecutrix, leaves no manner of doubt that the prosecutrix was a consenting party and, therefore, the charge under Section 376 against the appellant cannot be sustained and accordingly he is acquitted of the said charge. 17. Learned counsel for the appellant contends that no charge under Section 366-A is made out against the appellant, as there is no evidence on record that she was subjected to illicit intercourse by any 3rd person and in support of this contention, learned counsel for the appellant has placed reliance on the judgment of the Honble Supreme Court in the case of Iqbal v. State of Kerala, 2007(4) RCR(Criminal) 867 : 2007(6) RAJ 43 : 2008(1) RCC(Crl.) 54, wherein the Honble Supreme has been pleased to lay down as under : "9. The residual question is of applicability of Section 366A IPC. In order to attract Section 366A essential ingredients are (1) that the accused induced a girl (2) that the person induced was a girl under the age of eighteen years; (3) that the accused has induced her with intent that she may be or knowing that it is likely that she will be forced or seduced to illicit intercourse; (4) such intercourse must be with a person other than the accused, (5) that the inducement caused the girl to go from any place or to do any act. 10. 10. 1n the instant case, the admitted case of the prosecution is that girl had left in the company of the accused of her own will and that she was not forced to sexual intercourse with any person other than the accused. The admitted case is that she had sexual intercourse with the accused for which, considering her age, convection under Section 376 IPC has been maintained. Since the essential ingredient that the intercourse must be with a person other than the accused has not been established, Section 366A has no application." 18. The appellant in the present case was also charged under Section 363, IPC though not convicted. It is proved on record that the prosecutrix was aged 17 years and 8 months at the time alleged occurrence and it has also been proved by the prosecution that she was enticed by the appellant to go him to Haridwar, where she was subjected to sexual intercourse. Section 363 IPC reads as under : "363 Punishment for kidnapping :- Whoever kidnaps any person from India or from 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." The prosecution has thus proved offence punishable under Section 363 IPC against the accused beyond reasonable grounds. In view of what has been stated and discussed above, the appellant is acquitted under Sections 376 and 366-A IPC. However, he is convicted for an offence under Section 363 IPC The appellant has already undergone actual sentence of 3 years and 9 months. The ends of justice would be met if the period of sentence awarded to one already undergone under Section 363 IPC. Ordered accordingly. With the modification in conviction and sentence, the present appeal stands disposed of.