JUDGMENT 1. - These two appeals have been preferred the, appellants against the judgment dated 28.1.2005 passed by the Additional Sessions Judge (Fast Track) No. 2, Pali in Sessions Case No. 26/2005, whereby the appellants were convicted and sentenced as under: Appellant Kameda Kanaram (1) Four years rigorous imprisonment and a fine of Rs. 100/- and in default of payment of fine to further undergo three months simple Imprisonment for the offence under Section 366-A read with Section 120- B, I.P.C. (2) Four years rigorous imprisonment: and a fine of Rs. 100/- and in default of payment of fine to further undergo three months simple Imprisonment for the offence under Section 368 I.P.C. (3) Ten years rigorous imprisonment and a fine of Rs. 100/- and in default of payment of fine to further undergo three months simple imprisonment for the offence under Section 376 I.P.C. Aellant Moda Ram Q Modia (1) Seven years rigorous imprisonment and a fine of Rs. 100/- and In default of payment of fine to further undergo three months simple Imprisonment for the offence tinder Section 376 read with Section 120-B, I.P.C. (2) Four years rigorous imprisonment and a fine of Rs. 100/- and in default of payment of fine to further undergo three months simple imprisonment for the offence under Section 368 I.P.C. (3) Four years rigorous imprisonment and a fine of Rs. 100/- and in default of payment of fine to further undergo three months simple imprisonment for the offence under Section 366-A read with Section 120- B, I.P.C. 2. Succinctly stated, the facts of the case are that the prosecutrix Mst. "A" submitted a typed report (Ex.P-29) to the Station House Officer, Women Police Station, Pall on 8.4.2004 with the allegation that on 7.4.2004 she had come back from her school and was sitting out-side the house after taking lunch. At that time Meena D/o Ganpat came there and invited her to her house for having tea. The prosecutrix further alleged that accused-appellants Modu and Kanuda were already present in the house when she reached there. The prosecutrix further alleged that seeing the two accused, she tried to return back to her house but Meena insisted upon her to stay back saying that Kanuda was Modu's friend and that all will consume tea and she instructed the prosecutrix to make preparation for brewing tea. The prosecutrix further alleged that seeing the two accused, she tried to return back to her house but Meena insisted upon her to stay back saying that Kanuda was Modu's friend and that all will consume tea and she instructed the prosecutrix to make preparation for brewing tea. When the prosecutrix started the process of boiling water, at that time Meena and Modiya both went away from the house under the pretext that Meena had to bring the tea-leaves while Modiya would bring biscuits. These two allegedly locked the house from out-side. Thereafter accused Kanuda asked the prosecutrix to fetch water and when the prosecutrix brought the pitcher of water, accused Kanuda forced the prosecutrix into submission and then committed rape upon her. She alleged that during the course of day, between 2.00 to 8.00 P.M., Kanuda committed rape upon her four to five times. In the night time, Jagdish broke the lock of the house and took the prosecutrix back to her father. It was also stated that since there was a dust storm blowing in the night, the matter 'could not be reported to police immediately. The prosecutrix specifically stated that she was induced by Meena and taken to her house, locked into the room, where she was raped. 3. On the basis of this written report, F.I.R. No. 37/2004 for the offences under Sections 376 and 120-B, Indian Penal Code was registered and the investigation commenced. On the conclusion of the Investigation, a charge-sheet was filed against the two accused-appellants as well as against Meena for the offences under Sections 120-B, 366, 366-A, 368, 376 and 376/120-B, Indian Penal Code Charges were framed against the accused for the aforesaid offences. The accused pleaded not guilty and claimed trial. At the trial, the prosecution examined as many as 15 witness in support of its case. The accused, in their statement under Section 313 Criminal Procedure Code, denied the allegations of the prosecution but did not choose to lead any evidence in defence. 4. The learned trial Court, upon conclusion of the trial, proceeded to acquit co-accused Meena from the charges by holding that the allegation of the prosecutrix that Meena kidnapped her after giving allurement: and then conspired in the act of rape, were not believable; but convicted and sentenced the accused-appellants as mentioned above. 5. 4. The learned trial Court, upon conclusion of the trial, proceeded to acquit co-accused Meena from the charges by holding that the allegation of the prosecutrix that Meena kidnapped her after giving allurement: and then conspired in the act of rape, were not believable; but convicted and sentenced the accused-appellants as mentioned above. 5. Hence these two appeals have been preferred by the appellants challenging their conviction and sentences. 6. In the appeals, whilst Shri Ravi Panwar, the learned counsel for appellant Kanuda @ Kana Ram, has limited his arguments to the question of sentence and prayed that the appellant Kamuda @ Kana Ram has remained in actual custody for a period in excess of eight years and, therefore, a lenient view be adopted and the sentenced awarded to him be reduced to the period already undergone by him; whereas Mr. Firoz Khan, learned counsel for appellant Moda Ram @ Modia, contended that ex facie his conviction is illegal and is not supported by the evidence on record. He submits that the allegation made by the prosecutrix in her testimony was rather graver against the accused Meena who has been acquitted by the learned trial Judge and as such the conviction of appellant Moda Ram @ Modia is absolutely unwarranted in this case. He submits that the trial Judge himself has come to the finding that the allegation that the prosecutrix was called from her house after being induced, was not reliable. He submits that the testimony of the prosecutrix that she was kept locked inside the house of the accused with the principal accused Kanuda for a period of almost eight hours is absolutely unbelievable. He contends that the prosecutrix's house is adjoining to the house of the accused and is in a thickly populated area and, therefore, if at all the prosecutrix was detained by the accused, then she could have raised hue and cry. He submits that the prosecutrix, in the cross-examination, has clearly stated that when accused Meena and Moda Ram @ Modia went away from the house, at that time Kana Ram @ Kanuda was sitting in the Pole (the passage for entering into the house). He submits that the prosecutrix, in the cross-examination, has clearly stated that when accused Meena and Moda Ram @ Modia went away from the house, at that time Kana Ram @ Kanuda was sitting in the Pole (the passage for entering into the house). It is contended that the prosecutrix has clearly stated that she and the appellant Kameda were sifting freely in the Pole when the co-accused Meena and Moda Ram @ Modia went away and thereafter the door of the house 4as locked from out-side. It is submitted that the prosecutrix could not have seen as to who locked the door from out-side and, therefore, the allegation that the appellant Moda Ram @ Modla was the person who locked the door from outside, cannot be accepted. Pointing out to the statement of the witness PW-8 Pappu Devi, learned counsel submits that Pappu Devi, in her examination-in-chief, stated that when the lock of the house was broken, the prosecutrix was sitting alone in-side the house. It is submitted that no broken lock has been seized by the Investigating Officer, nor was the bolt found broken upon the site. inspection; therefore, it is submitted that the whole theory of the prosecution regarding the appellant Moda Ram @ Modia having locked the prosecutrix with the appellant Kana Ram @ Kanuda in the house, is unacceptable. He further contends that the star prosecution witness Jagdish, who, as per the prosecution, broke open the lock and brought the prosecutrix out from the house, has not been even examined at the trial and, thus, he submits that the whole story of the prosecution is nothing but a bundle of lies. Referring to the statement of the Medical Officer Dr. Sushila Rathi, it is submitted that the doctor has not stated about the existence of any fresh marks of sexual violence on the person of the prosecutrix upon her medical examination. He submits that if a young girl of 13 years in age had been sexually assaulted repeatedly over a period of eight hours, then it is impossible to believe that no marks of injuries would be found upon her body. He submits that if a young girl of 13 years in age had been sexually assaulted repeatedly over a period of eight hours, then it is impossible to believe that no marks of injuries would be found upon her body. It is submitted that the prosecutrix was found to be habitual to sexual intercourse and, therefore, the possibility of her having contacted consensual sexual relations with co-accused Kana Ram @ Kanuda and thereafter on this fact being discovered, the possibility of the false report being filed cannot be ruled out. Thus, it is submitted that the appellant Moda Ram @ Modia deserves to- be acquitted. 7. Learned Public Prosecutor opposed the arguments advanced on behalf of the appellants and submits that appellant Moda Ram @ Modia was responsible: firstly for bringing co-accused Kanuda @ Kana Ram to his house and thereafter the prosecutrix, after being lured, was locked into the room along with co-accused Kana Ram @ Kanuda so as to facilitate his design to commit rape upon her. It is, thus, submitted that the appeals filed by the appellants deserve to be dismissed. 8. Having considered the arguments advanced at the bar and upon a re- appreciation of the prosecution evidence, it is manifest that the prosecution, in this case, has not produced the most material witness Jagdish in support of its case. The specific version of the prosecutrix in her typed report was that it was Jagdish who broke open the lock of the house where she was detained and then handed her over to the father. The non- examination of Jagdish, who was most material witness for unfurling the true prosecution story and for giving corroboration to the prosecutrix's version, materially affects the prosecution case. No signs of the lock being broken have been found existing on the door of the room where the prosecutrix was detained. That apart, no such lock, which was allegedly broken to have the prosecutrix released, has been seized. 9. As has been stated above, the prosecutrix Mst. "A", upon her cross- examination, has admitted that Meena and Modu Ram @ Modia had gone away and Kana Ram @ Kanuda was sitting In the Pole. A pole is the main gate for accessing the house. The above deposition made by the prosecutrix completely shatters the prosecution story regarding the door having been locked form out- side by Modia. "A", upon her cross- examination, has admitted that Meena and Modu Ram @ Modia had gone away and Kana Ram @ Kanuda was sitting In the Pole. A pole is the main gate for accessing the house. The above deposition made by the prosecutrix completely shatters the prosecution story regarding the door having been locked form out- side by Modia. If the appellant Modu Ram @ Modia and Meena had gone away and at that time the appellant Kana Ram @ Kameda was sitting in the Pole, then the theory of the prosecutrix that she was locked into the house along with the appellant Kana Ram @ Kanuda, does not stand substantiated. The incident took place in a thickly populated area. It does not stand to reason as to why the prosecutrix did not raise any hue and cry during the long duration for which she was detained in the room. Her testimony is full of contradictions and is highly suspicious. If at all the appellant and the co-accused Meena locked the door from outside, then it does not stand to reason as to why the prosecutrix did not protest against the said action. She could have raised a hue and cry immediately and the neighbourhood would have been warned. Rather than raising a commotion, the prosecutrix silently continued to remain in the house and even served water to the principal accused Kanuda. 10. The theory of the prosecutrix regarding the co-accused Meena having brought her to her own house under a false pretext and then facilitating commission of rape upon her by the appellant Kana Ram @ Kanuda, has not been found to hold good by the trial Judge. Thus, the conviction of the appellant Moda Ram @ Modia for the very same acts cannot be said to be justified. 11. The story of the prosecutrix regarding here having been kidnapped and thereafter detained illegally by the accused also does not inspire confidence. As has been held above, the story of the prosecutrix regarding her having been locked into the house, has not been found to be believable and, thus, the conviction of the appellant Kanuda @ Kana Ram for the offences under Sections 368 and 366-A read with Section 120-B, Indian Penal Code cannot be sustained. 12. As has been held above, the story of the prosecutrix regarding her having been locked into the house, has not been found to be believable and, thus, the conviction of the appellant Kanuda @ Kana Ram for the offences under Sections 368 and 366-A read with Section 120-B, Indian Penal Code cannot be sustained. 12. The conviction of appellant Moda Ram @ Modla for the offence under Sections 366 read with Section 120-B, 368 and 376/120-B, Indian Penal Code is also unsustainable and is hereby set-aside, as a result thereof, the conviction of the appellant Kana Ram @ Kameda for the offence under Section 366 read with Section 120-B, Indian Penal Code also cannot be sustained. 13. Now coming to the submission made by the learned counsel for the appellant for reducing the sentence awarded to appellant Kana Ram @ Kanuda, the most material fact which goes in his favour in this case is that the story of the prosecutrix regarding her having been kidnapped and then locked into the house, has not been found to hold good. 14. The prosecutrix, upon her medical examination, has been found to be habitual to sexual intercourse. Of course, it goes without saying that the prosecutrix, being below the age of 16 years, was not competent to give consent, but the facts stated above are indicative of the circumstances that the case of consent, which was sought to be built by the accused at the trial, cannot be said to be without any basis, but since the age of the prosecutrix was below sixteen years, her consent is not relevant in the case. Thus the conviction of the appellant Kana Ram @ Kanuda for the offence under Section 376 Indian Penal Code cannot be interfered with. But in view of the discussion made hereinabove, the sentence of ten years awarded to him, cannot be said to be justified by any stretch of imagination and is highly excessive. 15. The upshot of the above discussion is that the appeal filed by appellant Moda Ram @ Modia deserves to be accepted and is hereby accepted. The conviction of the appellant Moda Ram @ Modla, as recorded by the learned trial Court for the offences under Sections 376 read with Section 120-8, 368 and 366-A read with Section 120-B, Indian Penal Code, is set aside. He is on bail. The conviction of the appellant Moda Ram @ Modla, as recorded by the learned trial Court for the offences under Sections 376 read with Section 120-8, 368 and 366-A read with Section 120-B, Indian Penal Code, is set aside. He is on bail. His bail bonds are discharged and he need not surrender. 16. The conviction of appellant Kana Ram @ Kanuda for the offences under Sections 366-A read with Section 120-B and 368 Indian Penal Code is set aside; but his conviction for the offence under Section 376 Indian Penal Code is maintained, but whist maintaining his conviction for this offence, the sentence awarded to the appellant Kana Ram @ Kanuda is reduced to the period of imprisonment already undergone by him. He shall be released from custody if not wanted in any other case.Appeal of 'M' allowed, Appeal of 'K' allowed. *******