1. Appellant has been convicted for the commission of offence punishable under Section 363 and 376 RPC vide judgment dated 08.06.2006 and thereafter vide order dated 13.06.2006 sentenced to five years rigorous imprisonment and fine of Rs.2000/, in default of payment of fine has to undergo a simple imprisonment for a period of three months for the commission of offence punishable under Section 363 RFC where as for commission of offence punishable under Section 376 RFC has been sentenced to ten years rigorous imprisonment and fine of Rs.5000/, in default of payment of fine has to undergo simple imprisonment of six months. The sentence awarded has been directed to run concurrently. 2. Aggrieved by the conviction and sentence passed vide judgment dated 08.06.2006 and order dated 13.06.2006, instant criminal appeal has been filed. 3. Reversal of the judgment is sought on the following grounds:- (I) Age of the prosecutrix has not been proved. (II) Auto driver in whose auto prosecutrix was forced to board has not been traced out nor six persons who are claimed to have assisted the commission of crime at the time of boarding the auto, have remained untraced. (Ill) Prosecutrix did not clearly indicate as to what sort of illegal acts had been committed by the accused. 4. Learned counsel for the appellant during the course of arguments laid much stress on the question of actual age of the prosecutrix as on the date of occurrence, secondly claimed that as per evidence brought on record, the prosecutrix is shown to have accompanied the accused of her own, therefore, no question of kidnapping. 5. For appreciating the contention as raised, it shall be quite relevant to precisely give the flashback of the occurrence and the trial: (a) Prosecutrix Miss Nasreena, on the date of occurrence was reading in 8th class. On 15th of February, 1998 she had gone to Rambagh for tuition but did not come back till late evening. On search could not be traced, as such, on 16th of February, 1998 report has been lodged to the effect that the prosecutrix has been enticed and kidnapped by the appellant (accused). Registration of the case on the basis of said report as FIR No.56/1998 P/S Sadder, culminated in filing the charge sheet (challan) to the effect that during investigation accused is established to have committed the offence punishable under Section 363 and 376 RPC. Registration of the case on the basis of said report as FIR No.56/1998 P/S Sadder, culminated in filing the charge sheet (challan) to the effect that during investigation accused is established to have committed the offence punishable under Section 363 and 376 RPC. (b) Charge against the accused has been framed by the trial court for commission of said offences on 22.5.1998. The prosecution in support of its case has produced five out of listed six witnesses, thereafter accused has been examined, as required, under Section 342 Cr. P. C. When the circumstances, as appeared in evidence against the accused during trial, were put to the accused, he has denied the complicity in the crime. While doing so has also added that from his house one girl Arifa was recovered who is married to him, she was major and had every right to marry him. Nasreena (prosecutrix) is the younger sister of Arifa, said Arifa had contracted marriage with him against the wishes of her parents and relatives, perhaps on the same basis witnesses have deposed against him. In defence appellant(accused) has produced as many as six witnesses. (c) Trial court, while appreciating the evidence as has been led both by the prosecution and defence, has concluded that the offences punishable under Section 363 and 376 RFC have been proved so has convicted and sentenced the accused." 6. The first point for determination is as to what was the age of the prosecutrix at the time of occurrence i.e. 15th of February, 1998. 7. PW prosecutrix Nasreena, in her statement before the Court, in uncertain terms, has proved her age as 13 years as on 11.08.1998 and a student of class 8th. PW Hilal Ahmad Khan, father of the prosecutrix, has also stated in the statement recorded by the trial court on 4.5.1999 that on the date of occurrence i.e. February, 1998 prosecutrix Nasreena was 8th class student and her age was 13 years. PW Ab. Rehman in the cross examination conducted by the counsel for the accused has also stated that the age of prosecutrix on the date of occurrence was 13/14 years. PW Mushtaq Ahmad in his statement recorded on 30.5.2000 has also stated that at the time of occurrence age of the prosecutrix was 13/14 years and was reading n 9th class. Rehman in the cross examination conducted by the counsel for the accused has also stated that the age of prosecutrix on the date of occurrence was 13/14 years. PW Mushtaq Ahmad in his statement recorded on 30.5.2000 has also stated that at the time of occurrence age of the prosecutrix was 13/14 years and was reading n 9th class. PW Ghulam Hyder Head Constable (Investigating Officer) has also qualified in his statement recorded on 30.5.2000 that during his investigation it was proved that the age of the prosecutrix was 13/14 years. 8. The age of the prosecutrix being 13/14 years and then her position of being an 8th class student on the date of occurrence has not been refuted even by the witnesses produced in defence, therefore, age of the prosecutrix being minor (13/14 old) at the time of occurrence is fully proved. 9. The next point for determination is as to whether prosecutrix was kidnapped. In this connection the statement of the prosecutrix assumes greater importance wherein she has in categoric terms stated that while going to Rambagh for private tuition, the accused boarded in an auto came and forcibly lifted her, gagged her mouth and did keep her in some house. The said deposition despite lengthy cross examination by the defence counsel has remained to be impeached, prosecutrix has clearly proved that she was forcibly kidnapped by the accused. Even if she would not have stated that she was forcibly taken away and her mouth was gagged, still enticing a minor girl is not permissible under law. Consent of the minor is immaterial whether accompanying the accused out of free will would amount to kidnapping or not, could be a question to be addressed but in the instant case when prosecutrix in categoric terms has deposed that she was forcibly taken away, accompanying accused out of free will looses significance. Even if it shall be inferable, which it is not, still offence of kidnapping, in view of the position of the prosecutrix being minor, is proved. The contention of the learned counsel that the police has not made attempt to trace out the auto driver who would depose as to whether prosecutrix was kidnapped by the accused or not, is of no consequence because prosecutrix has in categoric terms proved that she was kidnapped, more so when she was minor. The contention of the learned counsel that the police has not made attempt to trace out the auto driver who would depose as to whether prosecutrix was kidnapped by the accused or not, is of no consequence because prosecutrix has in categoric terms proved that she was kidnapped, more so when she was minor. Testimony of the prosecutrix is un-impeached. If the auto driver would have been traced and then even if he would have stated that the prosecutrix accompanied the accused, same would not negate the position of kidnapping because the prosecutrix, on the date of occurrence, was minor. 10. The position of the prosecutrix having been in the custody of the accused and her recovery from his custody is not only stated and proved by the prosecutrix in her statement but is also fully supported by PW Hilal Ahmad Khan, father of the prosecutrix, who has stated that the prosecutrix was recovered from the house of the accused at Gojwara. Same position is also supported by PW Ab. Rehman Ward who has stated that he accompanied the police at the time of recovery of the prosecutrix and the recovery memo was prepared. The contents of the recovery memo are correct, same has been exhibited as EXPW-2. PW Mushtaq Ahmad has also deposed on same lines and has proved the contents of the recovery memo. PW Ghulam Hyder (Investigating Officer) has stated that the prosecutrix was recovered from the house of the accused, recovery memo EXPW-2 is written by him and bears his signatures so is correct. Their statements are free from contradictions and acceptable. 11. In view of the depositions of said witnesses, it is amply proved that it is the prosecutrix Nasreena who had been recovered from the house of the accused. 12. The defence as set up by the accused, is that, in fact it is elder sister of the prosecutrix i.e. Arifa who against the wishes of her parents had married him, so it is said Arifa who has been recovered from his house. By leading evidence in defence had tried to prove the same but the defence set up is totally a concoction so as to cover up the position of offence punishable under Section 363 RFC. By leading evidence in defence had tried to prove the same but the defence set up is totally a concoction so as to cover up the position of offence punishable under Section 363 RFC. To claim that it was Arifa who was recovered, is totally belied when the prosecution witnesses including Investigating Officer have in categoric terms, beyond any doubt, proved that it was prosecutrix Nasreena who was recovered from the house of the accused. 13. DW Mohammad Rafiq Mir, brother of the accused, has stated that Mst. Arifa is married to the accused and it is Mst. Arifa who was brought to the house by the accused. Mst. Arifa refused to go to her maternal house and then it is the relatives of said Arifa who along with police came and forcibly took her away. When police came to their residence, Mst. Arifa was in the ground floor of the house. 14. Same story is stated by DWP Abdul Rashid Raja but he has added during cross examination that he did not know Arifa prior to the date when she was taken away by the police. 15. DW Ghulam Mohammad Tailor has stated that accused is a married person but does not remember the name of his wife. 16. DW Showkat Ahmad Dar has stated that Arifa is wife of the accused, he is a witness to the document i.e. marriage agreement. He heard that Mst. Arifa was taken away by the police from the house of the accused. In cross examination has stated that Miss Arifa had left her maternal home, when reached to the house of the accused, she was advised to go back and has added that prior to that he did not know Arifa. 17. Marriage agreement evidencing the marriage between the accused and Mst. Arifa has been placed on record by the accused but same has not been proved. 18. The defence as set up is further getting exposed by the fact that no question regarding Mst. Arifa has been put to the prosecution witnesses. If such question would have been put to the prosecution witnesses during trial that would give an indication that the defence set up by the accused has some origin or relevance. Under such circumstances prosecution theory, as set up and proved, vis-v-vis kidnapping of Miss Nasreena (Prosecutrix), cannot by any standard be discarded. 19. If such question would have been put to the prosecution witnesses during trial that would give an indication that the defence set up by the accused has some origin or relevance. Under such circumstances prosecution theory, as set up and proved, vis-v-vis kidnapping of Miss Nasreena (Prosecutrix), cannot by any standard be discarded. 19. The prosecutrix in her statement has deposed that she was subjected to forcibly rape. Can a girl like to be down in the eyes of the society or relatives to say falsely that she was kidnapped and subjected to rape, is unimaginable, therefore, theory set up by the defence is absolutely to be rejected. 20. The next question which arises for consideration is as to whether prosecutrix has been subjected to rape. The star witness to the same is prosecutrix herself who in her deposition has, in categoric terms, stated that the accused tore her clothes, was naked and then accused forcibly committed wrong with her. Even in the cross examination she has qualified that the accused has committed illegal act with her. She has also qualified that due to threat she did not shout and at times her mouth was gagged. PW Hilal Ahmad Khan, father of the prosecutrix, in his cross examination has stated that at the time of recovery of the prosecutrix, her shirt and trousers were torn. 21. The deposition of the prosecutrix that she was subjected to intercourse is also supported by the medical certificate because after recovery she was examined by lady Dr. Rifat Ara in LD hospital. In the certificate it is recorded that the patient is used to intercourse but no evidence of intercourse within last 24 hours. The said doctor has not appeared as a witness because of her non availability but her signature on the certificate has been proved by PW Nissar Ahmad Dar and Mohammad Ismail who were acquainted with her signature. PW Mohammad Ismail has stated that the said doctor had many times affixed her signature on various papers in his presence and had also obtained pay from him 5/8 times and whenever she would take the cash or cheque, she would sign, therefore, he identifies the signature of the said doctor on the certificate, same is marked as 'M'. 22. The position of the prosecutrix having been subjected to rape by the accused is fully proved. 22. The position of the prosecutrix having been subjected to rape by the accused is fully proved. The testimony of the prosecutrix is such which is clear, categoric and specific and the position of her deposition has not been impeached in any manner. When it is so, the offence punishable under Section 376 RPC is also clearly proved. 23. Learned trial court in the judgment has precisely refereed to the statements of the witnesses and on proper appreciation of such evidence has correctly come to the conclusion that the prosecutrix at the time of occurrence was 13 years of age, defence has not been able to create any doubt about the authenticity of the prosecution case. The absence of marks of violence on the body of the prosecutrix is not in any manner to create doubt about the actual happening. The conviction recorded by the trial court on proper appreciation of evidence is sustainable, as such, sustained. 24. Morality is an essential feature of a healthy society. Moral values when invaded, society gets frightened and social environment polluted. When virtue of a minor girl gets tarnished, humanity feels ashamed. Rape is such an offence which renders victim and her family shell-shocked. Normal life for the victim and her family gets ruined. The stigma follows the victim and her parents to the grave, such an offence is not only heinous but an eyesore for the society. Society bleeds when it is noticed that the moral degradation has reached the point of subjecting minor girl to sexual assault. The aggressor has to be shown the right place so that confidence of the society in criminal law justice system is not eroded. 25. The case dates back to 1998. nearly 14 years time has elapsed, sentence of five years rigorous imprisonment and fine of Rs.2000/(two thousand), in default of payment of fine, simple imprisonment for a period of three months for commission of offence punishable under Section 363 RFC is maintained. However, sentence of ten years rigorous imprisonment for commission of offence punishable under Section 376 RFC, in view of long pendency of the matter, is reduced to seven years but the fine of Rs.5000/as awarded, is enhanced to Rs.50,000/, in default of payment of fine, the accused shall have to undergo further one years imprisonment. In case amount of fine is deposited, same shall be paid to the victim (prosecutrix). In case amount of fine is deposited, same shall be paid to the victim (prosecutrix). The sentence as awarded for both the offences punishable under Section 363, 376 RFC shall run concurrently. 26. Periods of imprisonment undergone during investigation, trial and pendency of this appeal, shall be set off against the period of sentence. 27. Appeal, except for aforesaid modification in sentence and fine, is dismissed. Trial court shall issue warrant for securing custody of the accused and then send him to Central Jail for serving the period of sentence. 28. Trial court record along with copy of the judgment be send back forthwith.