JUDGMENT : Heard the learned counsel for the appellants and counsel for the State. 2. This appeal is directed against the judgment of conviction and Sentence dated 21st June, 2001, passed by Shri Sita Ram Mahto, 2nd Additional Sessions Judge, Seraikella, in Sessions Trial No.9 of 1995 by which judgment, learned Additional Sessions judge found the accused Bhasko Gope @ Dharmendra Gope guilty under section 366 and 376 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for seven years on both counts. He also found the accused Saroj Khandait guilty under 366A/34 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for seven years. Both the appellants filed two separate appeals being Criminal Appeal No.239 of 2009 and Criminal Appeal No.218 of 2001. Both the appeals were heard together and they are disposed of by single judge. 3. The prosecution case was started on the basis of the fard beyan given by the informant Nakul Lohar, P.W.1 on 4.7.1994 stating therein that his daughter Lakhi Kumari aged about 14 years has been taken away by Bhasko Gope, son of Kalipado Gope on 1.7.1994 in the night and from that day of kidnapping, he is still absconding with his daughter. On 4.7.1994, Nakul Lohar, P.W.1 lodged a written report for his kidnapping. On the basis of the written report, the police registered a case under Section 366A as well as Section 376 of the Indian Penal Code. Since, the case was Criminal Appeal No.239 of 2001 With Criminal Appeal No.218 of 2001 exclusively triable by the court of Sessions, hence the learned Magistrate after taking cognizance of the case committed the case to the court of Sessions and subsequently the case was tried by 2nd Additional Sessions Judge, Seraikella. 4. In course of trial, the prosecution has examined five witnesses. P.W.1 is Nakul Lohar, father of the victim girl, P.W.2 is Lakhi Kumari, victim herself, P.W.3 is Budam Loharin, mother of the victim girl, P.W.4 is Dr. B.B. Topno and P.W.5 is Devendra Tripathi, the Investigating Officer of the case. After trial, learned Additional Sessions Judge on consideration of the evidences and arguments of the parties found the accused guilty as aforesaid. 5. B.B. Topno and P.W.5 is Devendra Tripathi, the Investigating Officer of the case. After trial, learned Additional Sessions Judge on consideration of the evidences and arguments of the parties found the accused guilty as aforesaid. 5. It has been submitted by the learned counsel for the appellants that as far as the appellant-accused Saroj Khandait is concerned, there is no allegation against him of either committing rape or participation in kidnapping of victim girl. In her cross-examination P.W.2 stated that no part was played by accused Saroj Khandiat and as such he is actually fit to be acquitted from the charges leveled against him. He further submitted that as far as the accused Bhasko Gope is concerned, the evidences of P.W.2 and her father-P.W.1 and mother-P.W.3 shows that she was consenting party and out of her own will, she left the house with the accused Bhasko Gope and as such the allegation of kidnapping or rape has got no foundation and he is also entitled to be acquitted from the charges leveled against him. 6. On the other hand, learned counsel for the State has submitted that as far as the accused Saroj Khandait is concerned, there is no evidence against him either of kidnapping or of committing rape but it has been proved by the Doctor and evidences of witnesses that the victim girl Lakhi Kumari was minor at the time of occurrence and there is no question of her giving consent and as such the prosecution has proved the charges leveled against the accused Bhasko Gope. 7. After hearing the party and going through the evidences, the prosecution has examined five witnesses. (i) P.W.1 is Nakul Lohar, who is the father of the victim girl and he has stated in court that on the date of occurrence one Raj Kishore of his village informed him that his daughter is not in his house, then he made inquires but could not get tresses his daughter. After three to four days, he get information that his daughter is in Azad Basti with accused Bhasko Gope, then he made a written report in police station. He proved his signature in written report as Exhibit-1. 3 Criminal Appeal No.239 of 2001 With Criminal Appeal No.218 of 2001 (ii) P.W.2 is the victim girl. After three to four days, he get information that his daughter is in Azad Basti with accused Bhasko Gope, then he made a written report in police station. He proved his signature in written report as Exhibit-1. 3 Criminal Appeal No.239 of 2001 With Criminal Appeal No.218 of 2001 (ii) P.W.2 is the victim girl. She has stated that on the date of occurrence, when she was sleeping in her house, then accused Bhasko Gope interred her room and asked her to accompany him and when she refused to do so, then he closed her mouth and brought her out from the house. Another man was also standing out side the house then both of them took her on a bicycle to the bus stand and from the bus stand she was taken to Azad Basti where the accused Bhasko Gope kept her and committed rape upon her in the night. She stated that she stayed there for three nights and all the three nights she was raped by Bhasko Gope. Thereafter, he brought her to his house in village Vatghor from where the police recovered her. She stated that another person who was standing outside the house was Saroj Khandait, but he left when she reached Azad Basti. In her cross-examination, she stated that Saroj did not misbehave with her and he said nothing to her and she has got no complain against Saroj. In her cross-examination, she stated in Para-6 that bicycle was driven by accused Bhasko Gope. In her cross-examination she stated that she had made no hulla on bus stand or in Azad Basti. At para-14, she stated that at the time of report she was bleeding from her private part. She denied that when she was kidnapped she had any love affair with him. (iii) P.W.3, the mother of the victim girl has also stated that on the date of occurrence, she was sleeping out side the room in ‘Varanda’. Her daughter was sleeping in the room. The door was only half closed, when she woke up, then she found that her daughter was not there, and then she sent somebody to call her husband. After four days, she found her in the house of Bhasko Gope from where the police brought her. Her daughter was sleeping in the room. The door was only half closed, when she woke up, then she found that her daughter was not there, and then she sent somebody to call her husband. After four days, she found her in the house of Bhasko Gope from where the police brought her. On enquiry, the victim girl stated that Bhasko Gope committed rape upon her by force and she also stated that if she will make hulla, then she will be killed. .(iv) P.W.4, the Doctor, stated that during examination of the victim girl on 8.7.1994, she found victim girl aged about 14 to 16 years. As per the medical examination, she found that the victim girl has menstruation since last one year and her hymen was ruptured. However, she did not found any sign of rape. .(v) P.W.5-Devendra Tripathi is the formal witness, who has proved the formal F.I.R. as Exhibit-4, case diary as Exhibit-5 and the written report as Exhibit-3. 8. After going through the case and evidences on record, I find that there is no evidence against Saroj Khandait that he participated actively in kidnapping the victim girl, Lakhi Kumari. No evidence has been given by P.W.1 and P.W.3. Only P.W.2, who was standing out side the house and 4 Criminal Appeal No.239 of 2001 With Criminal Appeal No.218 of 2001 while she was being taken by Bashko Gope on a bicycle, he was sitting behind the bicycle and left them when she reached Azad Basti. She stated the Saroj Khandait did not misbehave with her nor he said anything to her, thus, there is no evidence against him to take active participation in kidnapping of the victim girl. It seems that he was only gave company to the main accused Bhasko Gope. In view of the above matter, the accused Saroj Khandait is acquitted from the charges leveled against him under Section 366A/34 of the Indian Penal Code and his conviction and sentence is set aside. It seems that he was only gave company to the main accused Bhasko Gope. In view of the above matter, the accused Saroj Khandait is acquitted from the charges leveled against him under Section 366A/34 of the Indian Penal Code and his conviction and sentence is set aside. As far as the accused Bhasko Gope is concerned, although, it appears from the evidences of P.W.2 that she had opportunity to make hulla at the bus stand or at Azad Basti but she did not make hulla and stated that she was under fear of threat and admittedly as per the evidences of Doctor and as per the evidences of P.W.1 and P.W.3, she was aged about 14 years at the time of occurrence and as such her consent is immaterial. A minor can not consent for committing wrong upon her. In view of the matter, the prosecution has proved the charges against Bhasko Gope @ Dharmendra Gope that he committed rape upon the victim girl. Accordingly, in my opinion, the charges against Bhasko Gope have been proved beyond reasonable doubt. I find no merit in this appeal and the conviction and sentence against the Bhasko Gope by Trial Court is maintained. Thus, the appeal of Saroj Khandait is allowed and the appeal of Bhasko Gope is dismissed. Since, appellant Bhasko Gope is on bail, his bail bond is cancelled and the trial court is directed to issue warrant of arrest against him for serving out the sentence. The appellant Saroj Khandait is released from the bondage of his bail bond.