JUDGMENT 1. - Both these appeals have been filed against the judgment & order dated 22.7.2009 passed by learned Addl. Sessions Judge (Fast Track No. 1), Beawar Distt. Ajmer in sessions case no. 15/2009 whereby accused appellants Ummed Singh and Smt. Pista Devi have been convicted and sentenced for the offence under Sections 363 and 366A IPC whereas accused - appellant Darbar Singh has been convicted and sentenced for the offence under Section 363, 366 and 376 IPC. Since both these appeals are listed today and heard together, therefore,they are being decided by a common order. 2. Briefly stated facts of the case are that one Laxman Singh has lodged a written report at P.S. Tatgarh stating therein that her (sic) daughter Nirmala Kumari is studying in Govt. Sr. Girls School in Class IX and on 13.8.2008, she went to the school but has not returned therefore the information was given at Police Station on which a Gumsdagi report was registered. It was also alleged that they made several efforts to find out Nirmala Kumari but she could not traced out. it was alleged that on 16.8.2008, her (sic) daughter Nirmala Kumari came to the house and told that on 13.8.2008 the accused appellants abducted her and took her on the motor cycle. It was further alleged that a cold drink was given to her and after drinking the cold drink Nirmala Kumari has become unconscious and thereafter she had been left by the accused appellant at bus stand Devgarh where the accused Darbar Singh was also standing with the accused appellant and they were given threatening to the prosecutrix and the prosecutrix due to fear has become unconscious and when she came in sense, she found her self in Surat. It was also alleged that she was confined by the Darbar Singh in a room and when on 15.8.2008 Darbar Singh went for some work she run away from the house of Darbar Singh and reached the village through bus. It was further alleged that her (sic) daughter told to him that Darbar Singh has committed rape with her on the night of 14.8.2008 etc. 3. It was further alleged that her (sic) daughter told to him that Darbar Singh has committed rape with her on the night of 14.8.2008 etc. 3. On the basis of above report made by complainant Laxman Singh, the police registered a case against the accused Darbar Singh for the offence under Section 363, 366 and 376 IPC and against the appellants Ummed Singh and Pista Devi for offence under Sections 363, 366A IPC. During the course of investigation, the police arrested the accused appellants and after usual investigation, filed challan/charge - sheet against them for the offence under Sections 363, 366A and 376 IPC before the Judicial Magistrate, 1st Class, Beawar, and the case was committed to the court of Addl. Sessions Judge, Beawar who transferred the case before the court of Addl. Distt. & Sessions Jadge (Fast Track), Beawar, Distt. Ajmer, who framed the charges against accused - appellant Darbar Singh for offence under Sections 363, 366 and 376 IPC, and against Ummed Singh & Pista Devi for offence under Sections 363, 366 - A IPC, to which appellants denied and pleaded not guilty, and claimed to be tried. The prosecution examined 17 witnesses and exhibited certain documents. The statement of accused came to be recorded under Section 313 Cr.PC. 4. The learned trial court after recording the evidence and hearing both the parties, convicted and sentenced the accused appellants vide judgment and order dated 22.7.2009. The prosecution examined 17 witnesses and exhibited certain documents. The statement of accused came to be recorded under Section 313 Cr.PC. 4. The learned trial court after recording the evidence and hearing both the parties, convicted and sentenced the accused appellants vide judgment and order dated 22.7.2009. The relevant portion runs as under: n.Mkns'k % ifj.kker% vfHk;qDr njckj flag iq= iwj.kflag jkor fuoklh&jkusyk ih0,l0 VkWMx<+ dks /kkjk 363] 366] 376 Hkk0n0la0 ds vkjksiksa nks"kfl) fd;k tkdj mls /kkjk 363 Hkk0n0la0 ds vkjksi esa ikap o"kZ ds dBksj dkjkokl dh ltk o ikap gtkj :i;s ds vFkZn.M ls nf.Mr fd;k tkrk gSA vne vnk;xh vFkZn.M vfHk;qDr N% ekg dk vfrfjDr lJe dkjkokl HkqxrsxkA vfHk;qDr njckjflag dks /kkjk 366 Hkk0n0la0 ds vkjksi esa N% o"kZ ds dBksj dkjkokl dh ltk o N% gtkj :i;s ds vFkZn.M ls nf.Mr fd;k tkrk gSA vne vnk;xh vFkZn.M vfHk;qDr N% ekg dk vfrfjDr lJe dkjkokl HkqxrsxkA vfHk;qDr njckj flag dks /kkjk 376 Hkk0n0la0 ds vkjksi esa lkr o"kZ ds dBksj dkjkokl dh ltk ,oa nl gtkj :i;s ds vFkZn.M fd;k tkrk gSA vne vnk;xh vFkZn.M vfHk;qDr ,d o"kZ dk vfrfjDr lJe dkjkokl HkqxrsxkA vfHk;qDrx.k mEesn flag iq= y{e.k flag jkor o Jherh fiLrknsoh iRuh mEesn flag jkor] fuoklhx.k&dkuk[kstM+h iqfyl Fkkuk&VkWMx<+] ftyk vtesj ( jkt ) dks vkjksfir vkjksiksa vUrxZr /kkjk 363] 366, Hkk0n0la0 ds vkjksiksa esa nks"kfl) fd;k tkdj mUgsa ( izR;sd dks ) /kkjk 363 Hkk0n0la0 ds vkjksi esa ikWap&ikWap o"kZ ds dBksj dkjkokl dh ltk ls rFkk ikap&ikap gtkj :i;s ds vFkZn.M ls nf.Mr fd;k tkrk gSA vne vnk;xh vFkZn.M izR;sd vfHk;qDr N%&N% ekg dk vfrfjDr lJe dkjkokl HkqxrsxkA vfHk;qDrx.k mEesn flag rFkk fiLrknsoh dks vkjksfir vkjksi /kkjk 366, Hkk0n0la0 esa ( izR;sd dks ) N%&N% o"kZ ds dBksj dkjkokl dh ltk ls rFkk N%&N% gtkj :i;s ds vFkZn.M ls nf.Mr fd;k tkrk gSA vne vnk;xh vFkZn.M izR;sd vfHk;qDr N%&N% ekg dk vfrfjDr lJe dkjkokl HkqxrsxkA vfHk;qDrx.k dk ltk okj.V fu;ekuqlkj rS;kj fd;k tkosA vfHk;qDrx.k iqfyl ,oa U;kf;d vfHkj{kk esa fcrk;h x;h ltk mudh ewy ltk esa lek;ksftr dh tkos ftldk mYys[k muds ltk okj.V ij fd;k tkosA " bl izdj.k esa tCr'kqnk otg lcwr eky ckn xtjus fe;kn vihy fu;ekuqlkj u"V dj fn;k tkosA vfHk;qDrx.k dks nh x;h lHkh ewy ltk,a lkFk&lkFk pysxhA vfHk;qDrx.k dks bl fu.kZ; ds izfr vfoyEc fu%'kqYd iznku dh tkosA " 5. Against the said judgment & order dated 22.7.2009 passed by learned Addl. Against the said judgment & order dated 22.7.2009 passed by learned Addl. Sessions Judge (Fast Track No. 1), Beawar, Distt. Ajmer, these appeals have been preferred by the accused appellants. 6. Learned counsel for the appellants have contended that the learned trial court has not properly considered the statement of PW - 6 Dr. Archana Mittal who has examined the prosecutrix. The statement of Dr. Archana Mittal (PW - 6) reads as under : " fnukad 24-08-08 dks eSa dfu"B fo'ks"kK ds in ij C;koj vLirky esa dk;Zjr Fkh] eSaus esfMdy T;wfjLV ds izfrosnu ij lqJh fMEiy mQZ fueZyk iq=h y{e.kflag tkfr jkor mez 17 o"kZ fuoklh dkuk[kstM+h VkVx<+ dk esfMdy eqvk;uk fd;k tks cykRdkj ds lEcU/k esa fd;k FkkA mlesa eSaus ik;k fd mlds tuukax iwoZ fodflr Fks] 'kjhj ij dksbZ tkfgjk pksV ds fu'kku ekStwn ugha Fks] ftldk gkbZeu QVk gqvk ugha FkkA ejh jk; ds vuqlkj mlds lkFk laHkksx fd;k gqvk ugha Fkk D;kasfd gkbZeu QVk gqvk ugha FkkA tkap gsrq Lokc o LykbM yh xbZ ftls ,Q0,l0,y0 dks Hkstk x;k Fkk fjiksVZ izn'kZ ih0 16 gS] ftl ij , ls ch esjs gLrk{kj gSa rFkk lh ls Mh jk; gSA ftjg }kjk odhy vfHk;qDr ;g lgh gS fd dqekjh fMEiy ds tuukaxksa ij Hkh dksbZ pksV dk fu'kku ugha FksA ;g Hkh lgh gS fd fMEiy ds lkFk dksbZ lgokl vFkok laHkksx ugha fd;k x;k FkkA iqu% ijh{k.k & 'kwU;A " 7. Both the learned counsel appearing on behalf of the accused appellants have contended that as per statement of Dr. Archana Mittal, no offence under Section 376 IPC has been committed, it has also been contended that there are other material contradictions in between the statement of prosecution witnesses. They have further contended that prima facie statement of prosecutrix shows that she willfully accompanied with accused on the motor 1 cycle as accused - appellants were known to her, and when they were going to Devgarh, in the way the prosecutrix found and told to them that she is going to Devgarh, therefore, she made a request to the appellant to leave her at Devgarh, as the appellants were going to the Devgarh. Further, it has been 5 contended that on the basis of statement of Dr. Further, it has been 5 contended that on the basis of statement of Dr. Archana Mittal (PW - 6).which is reproduced herein above, the case of accused appellant Darbar Singh falls within the purview of Section 376/511, 363 and 366A IPC instead of Section 376, 363 & 366A IPC because accused - appellant Darbar Singh has not committed the rape, and since FIR has been lodged after a delay of about 10 - 11 days, and 10 accused - appellants Ummed Singh, Pista Devi and Darbar Singh are in judicial custody for the last 4 years, 10 months and 14 days, therefore, they requested to this court that their sentence should be reduced to the period already undergone by them in custody, and they should be released forthwith. In this respect, they have cited following judgments: 15 (i ) (2006) 9 SCC 590 , Ravinder v. State of MP. (ii) (2006) 9 SCC 589 , Rajkumar @ Raju Yadav @ Rajkumar v. State of Bihar (iii) 2013(1) WLC (Raj.) 571, Madanlal v. State 8. It has also been contended that accused - appellants remained in custody 20 for the period as mentioned herein above. It is further contended that Ummed Singh and Pista Devi, are husband and wife having children, accused - appellant Darbar Singh has also children and family members behinjf him, the statement of Dr. Archana Mittal has not confirmed the rape committed by Darbar Singh, but even then, the trial court has convicted the accused 2J appellant for the offence under Section 376 IPC. Relevant para no. 38 of the Judgment is reproduced as under: " vfHk;ksD=h fueZyk ds cykRdkj ckcr ijh{k.kdrkZ fpfdRlkf/kdkjh vpZuk feRry ( ih0M0 6 ) us dFku fd;k gS fd vfHk;ksD=h ds tuukax iw.kZ fodflr Fks] 'kjhj ij dksbZ tkfgjk pksV ds fu'kku ugha Fks vkSj u gh gkbZeu QVk gqvk FkkA mldh jk; ds vuqlkj vfHk;ksD=h ds lkFk laHkksx fd;k gqvk ugha FkkA ysfdu vfHk;ksD=h Lo;a ds iqfyl dFku] /kkjk 164 n0iz0la0 ds dFku mlds U;k;ky; esa gq, l'kiFk dFkuksa esa ,slk dksbZ fojks/kkHkkl izdV ugha gqvk gS tks mldh lk{; esa lansg mRiUu djrk gksA ek= fpfdRlh; lk{; ls iqf"V ugha gksus ds vk/kkj ij vfHk;ksD=h dh leLr lk{; dks udkjk ugha tk ldrkA " 9. Hence, at last, it has been prayed that sentence Swarded to the accused-appellants should be reduced for the period already undergone by them in confinement, as indicated herein above. 10. Learned Public Prosecutor for the State has opposed the same and contended that the impugned order passed by the trial court is just and proper. 11. I have heard learned counsel for the parties and having gone through the relevant material available on record, including the statement of Dr. Archana Mittal, who has examined the prosecutrix and deposed that she did not find any confirmatory evidence of rape on the victim, I am of the considered view that the case of accused-appellant Darbar Singh falls within the purview of Section 376/511 IPC instead of Section 376 IPC and since there is also a delay of 10-11 days in lodging the FIR, in the peculiar facts & circumstances of the case, I deem it just and proper to convict the appellant Darbar Singh under Section 376/511 IPC instead of Section 376 IPC and reduce the sentence awarded by the trial court to the period already undergone by the accused appellants in custody, as indicated herein above. 12. In the result, the appeals are partly allowed with the following directions : (i) The conviction of accused-appellant Darbar Singh is altered from Section 376 IPC to Section 376/511 IPC. (ii) The other accused-appellants Ummed Singh, Pista Devi and Darbar Singh have already remained in custody for the period as indicated above, their sentence is reduced for the period already undergone by them in custody. (iii) All the accused-appellants be released forthwith, if not required in any other case and their bail bond be cancelled accordingly. Rest of the terms of impugned judgment shall remain unchanged. (iv) The impugned judgment dated 22.7.2009 stands modified, as indicated above. Appeal partly allowed. *******