JUDGMENT N. ANANDA, J.—Crl. A. No. 1517/2007 is filed by accused No. 3 and Crl. A No. 1688/2007 is filed by accused No. 1 and 2 in S.C. No. 167/2006 against judgment of conviction of accused Nos. 1 and 2 for offences punishable under Sections 366A and 376 I.P.C. and conviction of accused No. 3 for an offence punishable under Section 366A I.P.C. 2. We have heard Sri. Shankarappa, learned counsel for accused and Sri. P.M. Nawaz, learned Addl. S.P.P. for the State. 3. In brief, the case of prosecution is as follows: That on 5.11.2005, at about. 2.00 p.m.. when the victim girls (examined as P.W.s.7 and 8) were proceeding near Kadu Siddeshwara Matha in Nonavinakere village, accused No. 1 and 2 kidnapped them in a Tata Sumo vehicle bearing No. KA-06/A-1046 driven, by accused No. 3. That during the period between 5.11.2005 to 29.11.2005, accused No. 1 and 2 took P.Ws.7 and 8 to different places and committed rape on them. 4. On behalf of the prosecution, P.Ws. 1 to 27 were examined and documents as per Ex.P1 to P51 were marked. Material objects as per MO’s. 1 to 28 were marked. The learned trial Judge on appreciation of evidence and on hearing the learned counsel for parties convicted the accused for the aforestated offences. 5. The learned counsel for accused and learned Addl. S.P.P.. have taken us through evidence and the impugned judgment. At the relevant, time, the victim girls were studying in 10th Standard in Kadu Siddeshwara High School which was under the management of Kadu Siddeshwara Mutt at Nonavinakere. After the Incident, P.W. B-Manjunath (father of P.W. 7) lodged the first information as per Ex.P39 on the basis of which Crime No. 58/2005 was registered for an offence punishable under Section 366A read with 84 I.P.C. At this juncture, it is relevant to state that the crime was registered against, accused No. 1 and 2. 6. It is the case of prosecution that accused No. 1 and 2 had kidnapped P.Ws. 7 and 8 in a Tata Sumo vehicle bearing No. KA-06/A-1046 driven by accused No. 3, Accused No. 1 and 2 had taken P.Ws.7 and 8 to various places including Hindupura, Gorentla, Penagonda and Bangalore. The accused had confined the victim girls in houses and lodges. Accused No. 1 committed rape on. P.W. 7-Chaitra and accused No. 2 committed rape on P.W. 8-Indu. 7. The accused had confined the victim girls in houses and lodges. Accused No. 1 committed rape on. P.W. 7-Chaitra and accused No. 2 committed rape on P.W. 8-Indu. 7. On 9.12.2005. when, the accused No. 1 and 2 were taking the victim near Kyatsandra bus stand, the police apprehended the accused and took the victim girls to their custody and they were restored to their parents by an order made by the jurisdictional Magistrate. The victims (P.Ws.7 and 8)were subjected to medical examination. The accused were arrested and they were also subjected to medical examination. The incriminating articles were sent to Forensic Science laboratory. The investigating officer collected the documents relating to the age of P.W.s.7 and 8 and submitted charge sheet. 8. The learned Sessions Judge accepted the evidence adduced by the prosecution and convicted the accused for the aforestated offences. Before adverting to appreciation of evidence, it is necessary to state the inter se relationship of some of the prosecution witnesses. 9. P.W. 6-Manjunatba and P.W. 19-Mala are the parents of P.W. 7-Chaitra. P.W. 9-Mahadevappa and P.W. 14-Kalpana are the parents of P.W. 8. At the relevant time, P.W.s.7 and 8 were studying in 10th Standard in a High school run by Kadu Siddeshwara education trust at Noriavinakere. 10. The prosecution, in order to bring home the guilt of accused, has relied on the evidence of victims (P.Ws. 7 and 8), their parents and medical, evidence given by P.W. 12-Dr. Raghu Gokhale. The prosecution has relied on the contents of school certificate marked as per Ex.P33 and P34 and also on the evidence of P.W. 15-Eshwarappa to prove that, victims (P.Ws.7 and 8) were less than 16 years of age on the date of incident. 11. The evidence of P.W. 7-Chaithra (one of the victims) would reveal that his father was running a provision store near his house. During the absence of his father, she used to sit in the shop. Accused No. 1 and 2 were visiting the shop to purchase cigarettes. The houses of P.W. 7 and 8 are separated by 10 houses. Accused Nos. 1 and 2 whenever they used to visit the shop of P.W. 7, they were teasing P.Ws. 7 and 8. 12. P.W. 7 has deposed on 5.11.2005. P.Ws.7 and 8 were proceeding near Sree Kadu Siddeshwara Mutt. The houses of P.W. 7 and 8 are separated by 10 houses. Accused Nos. 1 and 2 whenever they used to visit the shop of P.W. 7, they were teasing P.Ws. 7 and 8. 12. P.W. 7 has deposed on 5.11.2005. P.Ws.7 and 8 were proceeding near Sree Kadu Siddeshwara Mutt. At that, time, they met P.W. 1-Krishnappa (Watchman and Driver of Sree Kadu Siddeshwara High School) who enquired them as to where they were going. P.Ws. 7 and 8 told them, that they were going to a temple. P.W. 7 saw a Tata Sumo vehicle, which had been parked at a distance. Accused No. 1 and 2 dragged P.Ws. 7 and 8 and made them to sit in Tata Sumo vehicle, There were two drivers in the Tata Sumo vehicle. In the next breath, P.W. 7 has deposed that the accused had parked the Tata Sumo on the road in front of Sree Kadu Siddeshwara Mutt, The accused took P.Ws. 7 and 8 in a Tata Sumo vehicle at 2.00 p.m., and reached Bangalore at 5.30 p.m. The Tata Sumo vehicle was left in Bangalore and from there accused Nos. 1 and 2 took P.Ws. 7 and 8 to Hindupur. They were kept in. two separate rooms of a Lodge at Hindupur, Accused No. 1- Nawaz had confined P.W. 7 in one room, whereas, accused No. 2-Farooq had confined P.W. 8 in another room. Accused No. 1 attempted to commit rape on P.W. 7, however, she resisted. Even then, accused No. 1. committed rape on. P.W. 7. The accused brought, burkhas, toe rings and tali and forced P.Ws. 7 and 8 to wear burkha, tali and toe rings. The accused renamed P.W. 7 as Salma and P.W. 8 as Sabrina. Thereafter, the accused 1 and 2 took P.Ws. 7 and 8 to Gorerttla village and kept them in a house. Accused Nos. 1 and 2 were going to fix metallic pieces to heals of Oxen, They used to return at 3.00 p.m. Accused No. 1 used to commit rape on P.W. 7 and accused No. 2 used to commit rape on P.W. 8. The accused 1 and 2 shifted P.Ws. 7 and 8 to Penugonda and stayed in a house. On the following day, the accused took P.Ws. 7 and 8 to the house of elder sister of accused No. 1 at Bangalore, They stayed there for a day. The accused 1 and 2 shifted P.Ws. 7 and 8 to Penugonda and stayed in a house. On the following day, the accused took P.Ws. 7 and 8 to the house of elder sister of accused No. 1 at Bangalore, They stayed there for a day. Thereafter, the mother of accused No. 1 brought P.Ws. 7 and 8 and left them near Tumkur police station and went away. The accused had not accompanied P.Ws. 7 and 8 to Tumkur. During cross-examination, P.W. 7 has deposed; that the police took her to Government hospital and she was subjected to medical examination. During cross-examination. P.W. 7 has deposed; that they were kidnapped from a public place. P.W. 7 was not aware of other persons who had travelled In the Tata Sumo vehicle. She cannot identify the two drivers who were in Tata Sumo vehicle. They reached Bangalore at 5.30 p.m. They got down near Bangalore bus stand and walked for a distance of ½ kilometer. On the way they saw the public moving and roads were crowded. They were walking on the crowded roads. Thereafter, they boarded a bus to go to Hindupur and there were several passengers. After P.Ws. 7 and 8 were brought to a Hotel, food was being served by room boys. Alter they were taken to Gorentla village, they were staying in a small house. Thereafter, they were taken to Penagonda village and they were staying in house. In that house, one Ravi and his wife were present. On the following day, the mother of accused No. 1. brought, them to Kyatsandra at 8.30 or 9.00 a.m. The Kyatsandra. police took victims to their houses. 13. Thus, we find evidence of P.W. 7 that she was kidnapped by the accused 1 and 2 by using criminal force from the midst of Nonavinakere village looks improbable. P.W. 7 was in the company of accused No. 1 and P.W. 8 was in the company of accused No. 2 and they had stayed in different places. Though they had several opportunities to cry for help or escape from the clutches of accused, they did not do so. In the circumstances, the evidence of P.W. 7 that accused No. 1 had committed rape on her against her consent looks improbable. 14. Though they had several opportunities to cry for help or escape from the clutches of accused, they did not do so. In the circumstances, the evidence of P.W. 7 that accused No. 1 had committed rape on her against her consent looks improbable. 14. The evidence of P.W. 8 is more or less similar to the evidence of P.W. 7 except the fact that accused No. 2 committed rape on P.W. 8. P.W. 8 has deposed that P.W. 7 was in the company of accused No. 1 and P.W. 8 was in the company of accused No. 2 and they were staying in different places. Though they had several opportunities P.W. 8 had not made any attempt to cry for help or escape from the clutches of accused. 15. The medical evidence relating to examination of P.Ws. 7 and 8 is given by P.W. 12-Dr. Raghu Gokhale. P.W. 12 has deposed; that on 2.12.2005, P.W. 12 along with Dr. Latha and staff nurse had examined P.W. 7 aged about 15 years. There were no external injuries. As per the information given by P.W. 7 she had attained puberty at the age of 18 years, i.e., on 28.12.2003. The hymen was torn, vagina admitted two fingers. She did not find bloodstains or seminal stains. The torn cycle of hymen was healed about 7 days prior to the date of examination. She has opined that P.W. 7 was subjected to sexual intercourse. 16. On the same day at about 1.20 p.m., P.W. 12 had examined P.W. 8 aged about 18 years. As per the information given by P.W. 8, she had attained puberty on 13.11.2003. On examination of P.W. 8, P.W. 12 found, that there were no external injuries on P.W. 8. The hymen was torn, vagina admitted two fingers. The victim (P.W. 8) had painful experience at the time when she was examined by P.W. 12. The torn cycle of hymen was healed about 7 days prior to the date of examination. She has opined that P.W. 8 was subjected to sexual intercourse. On 9.12.2005, P.W. 12 examined accused 1 and 2 about their capability to perform sexual intercourse and opined in positive. During cross-examination of P.W. 12, an unsuccessful attempt has been made to discard the age given by the victims and also to deny that victims were not subjected to medical examination. 17. On 9.12.2005, P.W. 12 examined accused 1 and 2 about their capability to perform sexual intercourse and opined in positive. During cross-examination of P.W. 12, an unsuccessful attempt has been made to discard the age given by the victims and also to deny that victims were not subjected to medical examination. 17. At this juncture, it is relevant to state that P.Ws. 7 and 8 were in the company of accused from 21.1.2005 to 29.11.2005, Accused Nos. 1 and 2 had taken P.Ws. 7 and 8 to different, places. The medical evidence given by P.W. 12 clearly reveals that the hymen, of P.W. 7 was torn with serratted tearing marks and similarly, the hymen of P.W. 8 was torn with serrated tearing marks. The vagina of P.W. 7 admitted two fingers. During medical examination, she had painful experience. Similarly, the vagina of P.W. 8 admitted two fingers. During medical examination, she had painful experience. Thus, from the direct, evidence given by the victims and the medical evidence, it can safely be concluded that accused No. 1 had committed sexual intercourse on P.W. 7 and accused No. 2 had committed sexual Intercourse on P.W. 8. 18. The learned counsel for accused would submit, that P.Ws. 7 and 8 were in the company of accused from 5.11.2005 to 29.11.2005. They had moved from place to place. They had several opportunities to seek for help from the public or police. They had several opportunities to escape from the clutches of the accused. Even then, P.Ws. 7 and 8 had not made any attempts to seek for help or to escape from the clutches of the accused. Therefore, P.Ws. 7 and 8 were consenting parties. 19. In order to appreciate the submission it is necessary for us to record a finding as to whether P.Ws. 7 and 8 had completed sixteen years of age. 20. P.W. 7 has deposed that at the relevant time she was studying in 10th Standard at Kaudsiddeshwara High School. During cross-examination she has denied that during the year 2005 she had attained the age of majority. In the birth certificate-Ex.P52 it is shown that P.W. 7 was born on 19.3.1991. 21. The learned counsel for the accused would submit that Ex.P52 was got-up during the course of Trial and it was not filed along with the charge sheet. We notice from the records that Ex. In the birth certificate-Ex.P52 it is shown that P.W. 7 was born on 19.3.1991. 21. The learned counsel for the accused would submit that Ex.P52 was got-up during the course of Trial and it was not filed along with the charge sheet. We notice from the records that Ex. P52 was produced by P.W. 7 when she was further cross-examined on. 15.7.2005. However, the late production cannot be a ground to discard the contents of the document. The learned counsel for the accused apart from suggesting P.W. 7 that her parents concocted Ex.P52, nothing is brought on record to disbelieve the contents of Ex.P52. 22. We have the evidence of P.W. 15 (the then Head Master of Kadusiddeshwara High School) P.W. 15 had produced certificate as per Ex.P13 indicating the date of birth, of P.W. 7 as 19.3.1991. We see from the evidence of P.W. 15 that he had brought the school admission register. The learned Trial Judge alter comparing the same with the contents of Ex.P13 has made an observation that, the entries found in the school admission register and the entries found in the certificate Ex. P13 would tally. From this document also we find that. P.W. 7 was born on 19.3.1991. 23. The prosecution has produced Ex. P53 during further examination of P.W. 8 on 5.9.2007. From the contents of Ex.P53 (Birth Certificate) we find that P.W. 8 was born on. 8.9.1990, The learned counsel for the accused would submit that Ex.P53 was got-up during trial, The document was not produced along with the final report and, therefore, the contents of Ex.P53 cannot, be accepted. 24. It is true that Ex.P53 was belatedly produced by the prosecution. However, the contents of Ex.P53 would disclose that the certificate of birth was issued by the Registrar of Births and Deaths, Shimoga-Bhadravathi Mahanagara Palike, We have the evidence of P.W. 15 the then Head Master of Kadusiddeshwara High School, P.W. 15 has deposed that P.W. 8 was studying in 8th Standard. Ex.P34 is the certificate issued by P.W. 15 on the basis of the entries found in the school admission register. From the content of Ex.P34 we find that. P.W. 8 was born, on 6.7.1990. We see from the evidence of P.W. 15 had brought school admission register. Ex.P34 is the certificate issued by P.W. 15 on the basis of the entries found in the school admission register. From the content of Ex.P34 we find that. P.W. 8 was born, on 6.7.1990. We see from the evidence of P.W. 15 had brought school admission register. The Trial Court on verification of the same has found that the date of birth as shown in the school admission register and also the date of birth as shown in Ex.P13 are one and the same and there are no variations. Therefore, we hold that as on the date of incident (5.5.2005) P.W. 7 was less than 18 years of age. So also, P.W. 8 was less than 16 years of age. In the circumstances their consent would be immaterial. 25. The learned counsel for the accused would submit that as per the evidence of P.W. 12 the ossification test conducted on P.Ws. 7and 8 reveal that they were aged between 15 to 18 years. We have gone through the evidence of P.W. 12. As per his evidence P.Ws. 7 and 8 were subjected to Ossification test and the reports were made available to the Court. When the prosecution has produced school certificates and birth certificates of P.Ws. 7 and 8, there is no need for us to rely on the assessment of age given on the basis of radiological examination. The law is fairly well settled that prosecution has to take recourse to radiological examination only in the absence of birth certificate and school admission register. In the case on hand, we have certificates of birth issued by the competent, authorities and the certificates issued by the Head Master of the school in which P.Ws. 7 and 8 were studying. Therefore, the submission of the counsel for the accused cannot be accepted. 26. The evidence on record does not disclose that accused 1 and 2 had induced P.Ws. 7 and 8. In order to attract an offence punishable under Section 366 IPC, the prosecution has to prove that the accused had kidnapped P.Ws. 7 and 8 with, intent to compel the victim to marry or to seduce them to have illicit, intercourse. 27. In the case on hand P.Ws. 7 and 8 were less than 18 years of age. The accused had accompanied P.Ws. 7 and 8 and had illicit intercourse with them. 7 and 8 with, intent to compel the victim to marry or to seduce them to have illicit, intercourse. 27. In the case on hand P.Ws. 7 and 8 were less than 18 years of age. The accused had accompanied P.Ws. 7 and 8 and had illicit intercourse with them. Therefore, an offence under Section 368 IPC is squarely attracted. The learned Trial Judge committed an error in convicting the accused for an offence punishable under Section 366A IPC as we do not find inducement by Al and A2. 28. We find that P.Ws. 7 and 8 had not identified accused No. 8 before the Court and P.W. 7 has not deposed that accused No. 3 was in the Tata sumo vehicle when she was abducted from Kadusiddeshwara Mata. P.W. 8 has deposed that accused 1 and 2 forcibly took her to a van and accused 3 was driving that Tata sumo vehicle. In the discussion made supra, we have held that accused 1 and 2 had not used criminal force on P.Ws. 7 and 8. The evidence on record does not disclose that there was any pre-concert between A1, A2 and A3. The evidence of P.W. 7 does not find corroboration from the evidence of P.W. 8. P.W. 8 has not deposed that accused 3 had driven the Tata sumo vehicle from Nonavinakere to Bangalore. P.W. 7 has deposed that there were two drivers in Tata sumo vehicle. P.W. 7 has not deposed that accused 3 had driven Tata sumo vehicle from Nonavinakere to Bangalore, Therefore, there is no proof of participation of accused No. 3 in commission of the crime. The evidence does not disclose that accused 3 abetted the commission of above offences by accused 1 and 2. The learned Trial Judge without noticing the evidence of P.Ws. 7 and 8 has held A3 guilty of an offence punishable under Section 366A read with Section 114 IPC. Therefore, the conviction of accused 3 for an offence punishable under Section 366A read with Section 114 IPC cannot be sustained. 29. In the discussion made supra, we have held that acts of accused I and 2 abducting P.Ws. 7 and 8 and forcing them to have sexual intercourse would attract an offence punishable under Section 366 IPC. The learned Trial Judge without considering all these aspects has erroneously held A3. 29. In the discussion made supra, we have held that acts of accused I and 2 abducting P.Ws. 7 and 8 and forcing them to have sexual intercourse would attract an offence punishable under Section 366 IPC. The learned Trial Judge without considering all these aspects has erroneously held A3. to A3 guilty of an offence punishable under Section 366A. 30. The learned Trial Judge has sentenced A1 to A3 to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 10,000/- each for an offence punishable under Section 366A IPC and accused 1 and 2 are sentenced for life and to pay fine of Rs. 25,000/- each for offence punishable under Section 376 IPC. An offence under Section 376 IPC is punishable with imprisonment for a period of seven years and it may extend to life or ten years and also liable for fine. The learned counsel for the accused would submit, that there was tacit consent, of P.Ws. 7 and 8 and this can be inferred from the fact that, they had stayed in the company of Al and A2 for a period of 25 days without, any resistance or protest. A1 was aged about 21 years and A2 was aged about 22 years at the time of incident. They do not bear any criminal antecedents. They have chances to reform themselves. Therefore, the maximum sentence of imprisonment for life may be reduced. 31. The learned Additional SPP would submit that accused having abducted innocent girls (P.Ws. 7 and 8), had committed rape on them. Therefore, they deserve the maximum imprisonment provided under Section 376 IPC. 32. We have held that there was tacit consent, of P.Ws. 7 and 8, as they were less than 16 years of age and their consent is not material. We have held the accused guilty of an offence punishable under Section 376 IPC. Yet the fact remains that, the accused 1 and 2 do not hear any criminal antecedence. They have chances to reform themselves. At. the same time we do not find any reason to punish them with imprisonment, for a term not less than seven years. Therefore, we deem it proper to sentence the accused I and 2 to undergo imprisonment for a period of seven years and to pay fine of Rs. They have chances to reform themselves. At. the same time we do not find any reason to punish them with imprisonment, for a term not less than seven years. Therefore, we deem it proper to sentence the accused I and 2 to undergo imprisonment for a period of seven years and to pay fine of Rs. 25,000/- each, in default to undergo simple imprisonment for six months for an offence punishable under Section 376 IPC. We deem it proper to sentence A1 and A2 to undergo imprisonment for a period of 7 years and to pay fine of Rs. 10,000/- each, in default to undergo simple imprisonment for a period of three months for an offence punishable under Section 366 IPC. 33. In the result we pass the following: ORDER Crl. A. No. 1517/2007 filed by A3 is allowed and the judgment of conviction and sentence passed against him is set aside, A3 is acquitted, of an offence punishable under Section 366A read with 114 IPC. The bail bond executed by A3 shall stand cancelled. The fine amount, if any deposited by A3, shall be refunded to him. Crl. A. No. 1688/2007 filed by A1 and A2 is partly accepted. The judgment of conviction and sentence passed against them, is modified. Al and A2 are acquitted of an offence punishable under Section 366A read with Section 114 IPC. A1 and A2 convicted for offences punishable under Sections 366 and 378 IPC. Accused 1 and 2 are sentenced to undergo imprisonment for a period of seven years and pay fine of Rs. 25,000/- each, in default to undergo simple imprisonment for six months for an offence punishable under Section 376 IPC. Al and A2 are sentenced to undergo imprisonment for a period of seven years and pay fine of Rs. 10,000/- each. in default to undergo simple imprisonment for a period of three months for an offence punishable under Section 366 IPC. The sentences of imprisonment passed against Al and A2 shall run concurrently. ‘The period of detention undergone by them during Trial and pendency of these appeals is given set off as provided under Section 428 Cr.P.C. Out of fine amount deposited by Al and A2 compensation of Rs. 25,000/- each shall he paid to P.W. 7 and 8.