Judgment Kanwaljit Singh Ahluwalia, J. 1. The present appeal has been filed by Angrej Singh son of Deepu and his mother Smt. Mohindro, both residents of village Thana Police Station Pehowa against the judgment of Additional Sessions Judge, Kaithal, who held both Angrej Singh and Mohindro guilty for offences under section 336-A and further convicted Angrej Singh under 376 IPC. Both Angrej Singh and Mohindro were awarded five years rigorous imprisonment under section 366 IPC and were imposed a fine of Rs. 1000/- each, in default of payment of fine to undergo rigorous imprisonment for one year. Angrej Singh was also convicted under section 376 IPC to undorgo seven years imprisonment and a fine of Rs. 2000/-,in default of payment of fine to undergo one year rigorous imprisonment. 2. Both the appellants were named as accused in case FIR No. 33 dated 25.01.1996 registered at Police Station City Kaithal under Sections 366-A and 376 IPC. The FIR, in the present case, was lodged at the instance of Smt. Manbhari. It will be here to reproduce the FIR which has been reproduced by the trial Court in para 2 of the judgment : "I am resident of Koth Patti Gamri Kaithal. I had two sons and five daughters. My youngest daughter is Sarbati and oldest one is Phoolwati. Sunehri Devi was younger daughter of Phoolwati, who was maried with Surjan son of Chhotu of village Hajwana. My daughter Sunehri gave birth to one daughter and one son and thereafter, she died. Her both children used to reside with me. However, son of Sunehri Devi was taken from me by his father but her daughter Omi Devi was has ben residing with me for the last 14-15 years. I am separate from my sons in lodging and boarding. Omi Devi prosecutrix is my grand daughter, she used to reside with me. For the last 10-15 days, I was away to my parents in village Road Ror P.S. Pehowa. On 21.1.1996, my son Gian Singh came to village Ror and told that on that day, at about 5.00 a.m., Omi had gone outside to fetch fodder for animals, but she did not return. On search for Omi Devi in the relations, she could not be traced out. I have suspicion that someone from the village has induced Omi Devi to go with him out of village. On search for Omi Devi in the relations, she could not be traced out. I have suspicion that someone from the village has induced Omi Devi to go with him out of village. Till date, she could not be traced out. Today I have come along with Ramesh son of Ram Krishan Lamberdar and Raghbir son of Chhotu Ram to lodge the report". 3. After the above said FIR was investigated, a report under section 173 Cr.P.C. was submitted. PW-1 Dr. Jasmer Singh medico-legally examined Angrej Singh (appellant) and opined that he was able to perform sexual intercourse. He stated that MLR prepared by him is Ex.PA and he conducted the medical examination on the appellant (Ex.PB). ASI Gurmail Singh tendered his affidavit (Ex.PC). Constable Sultan Singh also tendered his affidavit (Ex.PD). Their affidavits being of formal nature, were to prove link evidence. PW-4 Sh. R.L. Sankhla was then posted as Additional Chief Judicial Magistrate, who stated that he had recorded statement of Omi Devi under section 164 Cr.P.C. being Ex.PE on the application moved by the police (Ex.PE/1). 4. PW-5 Lajjawati head teacher of Government Primary School proved the school certificate (Ex.PG), in which date of birth of the prosecutrix Omi Devi is recorded as 5.1.1981. PW-6 Dr. R.L. Mittal, who made endorsement on the police application Ex.PH for conducting medical examination of Omi Devi from a lady doctor. PW-7 Rishi Pal, draftsman prepared the scaled site plan. Omi Devi appeared as PW-8. She stated in her statement that she was residing with her maternal grandmother and she knew both the accused. Accused Angrej Singh present in the Court was employed as labourer with Baljit Singh and agricultural land of her grandmother was beyond the land of Baljit Singh and she used to pass through the Kacha path adjoining the fields of Baljit Singh. About one year and five months ago, when she was returning from the fields with fodder (i.e. in the month of January 1996), both the accused met her in the way. In the evening when she took the buffalos for drinking water, the buffalo ran away and in order to help her in catching hold of the buffalo, they took her in tube well kotha of Baljit Singh. She stated that both the appellants took her inside the kotha. When Angrej Singh took her near the cot, Mohindro (appellant) came outside the kotha. She stated that both the appellants took her inside the kotha. When Angrej Singh took her near the cot, Mohindro (appellant) came outside the kotha. There Angrej Singh is said to have committed sexual intercourse with Omi Devi against her consent. Thereafter, Angrej Singh brought a taxi and they took her to village Kurali. There also Angrej Singh committed sexual intercourse without her consent. Both Angrej Singh and prosecutrix Omi Devi spent 10-15 days at Kurali and Bhawanigarh villages and then they came back in a bus to Cheeka, where they were apprehended by the police. She further stated that police did not record her statement at bus stand Cheeka. She was medically examined and her statement was recorded before the Magistrate under Section 164 Cr.P.C. In cross-examination, regarding the material portion, she was confronted to show that she improved the version in the Court. She stated that she was not allowed to speak by the accused persons before the taxi driver. It was further stated that they reached village Kurali at about 10.00 p.m. There were ladies and gents of the house. She did not inform any family member about the incident. She stated that Angrej Singh was having a knife. She was under threat and had not disclosed to any body. She admitted that she resided at Kurali for 6-7 days. She used to go to ease herself out but Mohindro used to accompany her. She volunteered that Mohindro disclosed to every body that she is the wife of Angrej Singh. She further stated that in village Bhawanigarh also, she did not disclose regarding the incident to any of the family members. She stated that distance between Bhawanigarh and Cheeka is approximately 10 kilometers. PW-9 Dr. Neelam Kakkar medico-legally exained Omi Devi. On legal examination, it was found that hymen was absent and vagina admitted two fingers easily. She was referred to radiologist for determination of her age. In cross-examination she stated that possibility of Omi Devi being eligible for sexual intercourse cannot be ruled out. PW-10 Surat Kant ASI had taken Omi Devi for recording her statement under Section 164 Cr.P.C. and had also obtained school certificate. PW-11 Manbhari (complainant) reiterated the version given by her in the FIR. PW-12 Ramesh Chand stated regarding arrest of accused at the bus stand along with Omi Devi. PW-13 Giana is a maternal uncle of Omi Devi (prosecutrix). PW-10 Surat Kant ASI had taken Omi Devi for recording her statement under Section 164 Cr.P.C. and had also obtained school certificate. PW-11 Manbhari (complainant) reiterated the version given by her in the FIR. PW-12 Ramesh Chand stated regarding arrest of accused at the bus stand along with Omi Devi. PW-13 Giana is a maternal uncle of Omi Devi (prosecutrix). He stated that after she was missing, search was missing, search was made by him in the relations. PW-14 Hukam Chand is the investigating officer, who stated that on 25th January, 1996 Manbhari had made a statement regarding missing of Omi Devi (prosecutrix) from the house. 5. All incriminating circumstances were put to the accused. They denied the same and stated that they have been falsely implicated because Giana, maternal uncle of Omi Devi had borrowed money from them. No witness was examined in the defence. 6. A persusal of evidence of PW-8 Omi Devi reveals that after she has stated that she was subjected to sexual intercourse in kotha, she had accompanied the accused in a taxi from the village to village Kurali and then to village Bhawanigarh subsequently. Her saying that they spent 10-15 days together, she was introduced to his relations as his wife and that she made no effort to disclose any body about the incident, she was performing her routine chores and also used to go out to ease herself, her explanation that Angrej Singh was having knife and she was under threat are made up stories. It can be safely inferred that she herself had accompanied Angrej Singh and was a consenting party. As per school leaving certificate, her date of birth is 15th January, 1981. She has left along with accused in the month of January 1996. She was more than 16 years of age. Doctor had recommended that her age should be determined after ossification test is conducted by the radiologist, but no such record of the radiologist is on the record. Manbhari PW-11 has stated that the report (Ex.PW) was lodged she was informed on 21.01.1996 by Giana that Omi Devi is missing. FIR was recorded on 25.01.1996. It cannot be ruled out that period of 3-4 days was used for consultations and deliberations to introduce Mahindro as an accused. Manbhari PW-11 has stated that the report (Ex.PW) was lodged she was informed on 21.01.1996 by Giana that Omi Devi is missing. FIR was recorded on 25.01.1996. It cannot be ruled out that period of 3-4 days was used for consultations and deliberations to introduce Mahindro as an accused. It can be safely inferred that prosecutrix Omi Devi had herself left with the accused Angrej Singh and she was a consenting party to the sexual intercourse. Even otherwise, the story that Mohindro was sitting outside, is improbable. She has been introduced as an accused simply because complainant party was in suspicion that Angrej Singh has taken away Omi Devi, daughter of the family. 7. Since, from the school leaving certificate it is evident that she had completed 16 years of age, therefore no offence under Section 376 IPC is made out. However, since she was less than 18 years of age and she was taken away by Angrej Singh from the lawful guardianship of her maternal aunt, offence under Section 366 IPC instead of 366-A is made out. Therefore, appeal qua Mahindro is accepted and Angrej Singh is acquitted of the charge under Section 376 IPC. 8. In the present case, occurrence pertains to year 1996. A period of 12 years has elapsed. Benefit of protracted trial should accrue to the appellant Angrej Singh and same can be construed as a mitigating circumstance. Accordingly, I reduce his sentence from five years to three years under Section 366 IPC.