JUDGMENT Hon’ble V.K. Bist, J. Both these appeals are directed against the judgment and order dated 14.08.2012, passed by Additional Sessions Judge, Almora, in Sessions Trial No. 3 of 2007, whereby the said court has convicted accused Gulab Singh (appellant) under Sections 363, 366-A and 376 I.P.C., and sentenced him to rigorous imprisonment for a period of three years and directed to pay fine of Rs. 5,000/- under Section 363 I.P.C., rigorous imprisonment for a period of four years and directed to pay fine of Rs. 5,000/- under section 366-A I.P.C., rigorous imprisonment for a period of seven years and directed to pay fine of Rs. 20,000/- under section 376 I.P.C., and in default of payment of fine further simple imprisonment for a period of one year. By the same judgment and order, the trial court has convicted co-accused/appellant Smt. Kanti Devi and Ram Kishan (not appellant herein) under Sections 363 and 366-A I.P.C., and sentenced them to rigorous imprisonment for a period of three years and directed to pay fine of Rs. 5,000/- each under Section 363 I.P.C., rigorous imprisonment for a period of four years and directed to pay fine of Rs. 5,000/- each under section 366-A I.P.C., and in default of payment of fine further simple imprisonment for a period of six months each. It was directed that all the sentences shall run concurrently. It was also directed that the victim no.1 shall be entitled to receive Rs. 15,000/- and the victim no.2 shall be entitled to receive Rs. 10,000/- as compensation out of the fine imposed upon the accused. 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story, in brief, is that on 15.11.2006, P.W.3 Shri Sunder Lal Verma (father of Km. Kamini Verma-victim no.2) gave a written report at Police Station Bhatrojkhan, stating therein that on 12.11.2006, he lodged a missing report of his daughter Km. Kamini Verma aged 14 years and another girl Km. Meena Karakoti D/o Balam Singh at the Police Station. 3. Prosecution story, in brief, is that on 15.11.2006, P.W.3 Shri Sunder Lal Verma (father of Km. Kamini Verma-victim no.2) gave a written report at Police Station Bhatrojkhan, stating therein that on 12.11.2006, he lodged a missing report of his daughter Km. Kamini Verma aged 14 years and another girl Km. Meena Karakoti D/o Balam Singh at the Police Station. He reported that on 11.11.2006, both above named minor girls have been enticed away by Vinod Singh resident of Nanpara, Bahriach, his wife Smt. Kanti Devi, his brother Ramkishan and his brother-in-law Gulab Singh, who used to do Chiran work at Ghatti area, and Kripal Singh, who was tenant at Ghatti, and the said accused either may cause some obnoxious incident with minor girls or may sell them. He stated that some residents of Machod have seen the said accused taking the girls away. In the complaint, the complainant requested to take necessary action against the above named accused and to recover the minor girls. He also reported that on 11.11.2006 at around 09.00 a.m., the accused took the girls away. On the basis of said report, Case Crime No.220 of 2006 was registered at Police Station Bhatrojkhan, District Almora against the accused/appellants Gulab Singh and Smt. Kanti Devi as well as against Vinod Singh and Ramkishan (not appellant herein), relating to offences punishable under Sections 363 and 366-A I.P.C. Initially investigation was entrusted to S.O. Chandra Singh Bisht, who interrogated the witnesses and started investigation. Thereafter, investigation was handed over to S.O. Sanjay Singh Garbiyal, who after completion of investigation submitted charge sheet against the accused/appellants Gulab Singh, Smt. Kanti Devi and Ramkishan (not appellant herein), for their trial in respect of offences punishable under Sections 363, 366-A and 376 I.P.C. 4. The Judicial Magistrate, Ist Class, Ranikhet, District Almora, on receipt of the charge sheet, after giving necessary copies to the accused, as required under section 207 Cr.P.C., committed the case to the Court of Sessions for trial on 29.01.2007. After hearing the parties on 07.03.2007, learned Sessions Judge, Almora, framed charge of offences punishable under Section 363, 366-A and 376 I.P.C. against the accused Gulab Singh and charge of offences punishable under Section 363 & 366-A I.P.C. were framed against the accused Smt. Kanti Devi and Ramkishan (not appellant herein) to which all the accused pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Km. Meena (victim no.1), P.W.2 Km. Kamini (victim no.2), P.W.3 Sunder Verma (father of the victim no.2), P.W.4 Dr. Santosh Parthy (who medically examined Km. Meena Karakoti & Km. Kamini Verma), P.W.5 Constable Lekh Raj Singh, P.W.6 Dr. D.S. Nai (Superintendent of Government Govind Singh Mehra Hospital, Ranikhet), P.W.7 H.C.P. Lacchi Ram, P.W.8 Dr. S.S. Bhardwaj (Senior Pathologist of B.D. Pandey Hospital, Nainital), P.W.9. S.H.O. Sanjay Singh Garbiyal & P.W.10 S.H.O. Chandra Singh Bist (Investigating Officers). Oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which they alleged that the evidence adduced against them is false. After hearing the parties, the trial Court found accused Gulab Singh guilty of charge of offences punishable under Sections 363, 366-A and 376 I.P.C. and accused Smt. Kanti Devi and Ramkishan were found guilty of charge of offences punishable under Sections 363 & 366-A I.P.C. and were convicted accordingly. Aggrieved by the judgment and order dated 14.08.2012, passed by Additional Sessions Judge, Almora, in Sessions Trial No. 3 of 2007, these two appeals are preferred by the convicts. Both these appeals are filed by the convicts separately which were taken up together and are being disposed of by this common judgment. 5. Medical examination of Km. Meena Karakoti and Km. Kamini Verma was conducted by Dr. Santosh Parthy P.W.4 on 17.11.2006. Medical reports of the victim no.1 (Ex. A-2) and victim no.2 (Ex. A-3) are being reproduced below: Medical report of Km. Meena Karakoti (Ex. A-2): “Breast: conically, hemisphere, rounded. Nipple small, retracted, areola small brownish in colour. No mark of any injury on her face and body. Examination of private parts: pubic hair developed, labia majora, labia minora developed. No mark of any injury on her private part. No tenderness. No redness out. Admits 2 fingers easily. Hymen torn posteriorly. Normal vaginal discharge out. Vaginal smear taken and sent to Pathologist, Base Hospital, Almora. Girl sent to Radiologist, G.S.M. Govt. Hospital, Ranikhet for X-ray of wrist and elbow for confirmation of age.” Medical report of Km. Kamini Verma (Ex. A-3): “No mark of any injury over her face or body. Breast: Breast mounts developed, nipples not pointed. Examination of private part: pubic hair sparsly developed. Labia majora developed. Parents refused for internal examination. Girl sent to Radiologist, G.S.M. Govt. Hospital, Ranikhet for X-ray of wrist and elbow for confirmation of age.” Medical report of Km. Kamini Verma (Ex. A-3): “No mark of any injury over her face or body. Breast: Breast mounts developed, nipples not pointed. Examination of private part: pubic hair sparsly developed. Labia majora developed. Parents refused for internal examination. Girl sent to Radiologist, G.S.M. Govt. Hospital, Ranikhet for X-ray wrist and elbow for confirmation of age.” A supplementary Medical Report in respect of Km. Meena Karakoti was filed, in which the doctor opined that no spermatozoa seen in the given slides. According to physical finding, X-ray report and vaginal smear report, the age of the girl was between 16-18 years. No definite opinion could be given about rape. She had sexual intercourse. A supplementary Medical Report in respect of Km. Kamini Verma was filed, in which the doctor opined the age of the girl between 14-16 years. No definite opinion could be given about rape since the girl and her parents refused for physical and internal examination. 6. P.W.1 Km. Meena Karakoti (victim no.1) stated on oath that the incident is of around one year back. On 11.11.2006, she was going to school from her home with her friend Kamini. Near Machod, they met Kanti Devi, Vinod & Gulab Singh. Kishan Singh was also along with them. Vinod Singh is also called as Gulab Singh and Kishan is also called as Ramkishan. She stated that all the three accused used to reside in their village near a hand pump and used to do Chiran work. They also used to fetch water from that hand pump. Kanti Devi used to meet her at that hand pump and used to tell them (P.W.1 and P.W.2) that they will take them to Nainital for a trip. She was unknown to Gulab Singh and Ramkishan. On 11th, Kanti Devi took her (Meena) and her friend Kamini to Nainital and told them that they are taking them for a tour and thereafter, they will come back. That day, Vinod @ Gulab Singh and Ramkishan accompanied Kanti Devi. At the time of incident, she was studying in Class- IX. She stated that before this, she never went towards Ramnagar. She stated that she does not know the place, which comes after Ramnagar. She stated that on 12.11.2006, accused Gulab Singh committed rape upon her. That day, Vinod @ Gulab Singh and Ramkishan accompanied Kanti Devi. At the time of incident, she was studying in Class- IX. She stated that before this, she never went towards Ramnagar. She stated that she does not know the place, which comes after Ramnagar. She stated that on 12.11.2006, accused Gulab Singh committed rape upon her. At the time of incident, she was 14 years of age and the accused forcefully raped her. She stated that she did not know in which city of Nepal they were taken to. There, they were caught by the terrorists. In Nepal, Sunder Lal Verma, who is father of her friend Kamini, accompanied with the police of Bhatrojkhan brought them back. After reaching Ranikhet, her medical examination was conducted. She stated that Vinod and Gulab Singh are different persons and four persons took her, and by mistake, she identified Vinod as Gulab Singh. 7. P.W.1 Km. Kamini (victim no.2) stated on oath that the incident is of around one year back. 11th or 12th was the date, but she did not remember the exact date. That day, she was going to school with her friend Meena. Day before the incident, Kanti Devi gave them Rs. 200/-. She stated that Kanti Devi was known to them. She was resident of village Ghatti. Near Machod, between 08.30-09.30 a.m., Kanti Devi and father of Deewan told them that Deewan is the son of Kanti Devi and his father’s name is Vinod. They also met Ramkishan brother-in-law of Kanti (Devar) and her brother Gulab. Earlier, Kanti Devi used to tell them to come to her and they will go for trip. Four persons brought them to Ramnagar. They took them to a locality next to Ramnagar. That area was not seen by her and she could not tell the name of that area. They met the terrorists and terrorists handed them over to Nepal police. That time she, Meena, Gulab, Vinod, Kanti Devi and Ramkishan were together. Nepal police handed them over to Indian police. That time, her father Sunder Lal was also with the police. She stated that terrorists met them on the second day of the incident. They kept her (Kamini) and Meena with ladies and other accused were detained in a room. Police took her to the doctor. Her statement was recorded before the Magistrate. That time, her father Sunder Lal was also with the police. She stated that terrorists met them on the second day of the incident. They kept her (Kamini) and Meena with ladies and other accused were detained in a room. Police took her to the doctor. Her statement was recorded before the Magistrate. She stated that at the time of incident, she was the student of Class IX and her age was 14 years. 8. P.W.3 Sunder Verma (father of Km. Kamini) (complainant) in his testimony stated that the incident is of 11.11.2006. On that day, he was in Delhi. In the night at 08.00 p.m., he received a call that his daughter Kamini did not return back to home from the school. Thereafter, he came to home. After reaching home, he was informed that Kanti Devi, Vinod and Gulab Singh had taken his girl. He also came to know that along with Kamini, Meena was also missing. He lodged the report with the Police Station Bhatrojkhan. He proved the First Information Report (Ext. A-1). After lodging the report, he remained with the police personnel. From there, he went to the Police Station, Bahriach. There, they met both the girls and the accused. They brought the girls to the Police Head Office, Almora. From there, they went to the Police Station, Bhatrojkhan, where both the girls were handed over to him. He stated that on 12.11.2006, he gave a missing report of the girls to the Police Station, Bhatrojkhan, but the police did not register the same and said him that they will search the girls. 9. P.W.4 Dr. Santosh Parthy is the Medical Officer, who conducted medical examination of the victims. In her statements, she said same thing, which was written by her in the Medical Reports. 10. P.W.5 Constable Lekh Raj Singh on the instance of S.O. prepared the recovery memo (Ext. A-8), memo of arrest (Ext. A-9) and proved the same. P.W.6 Dr. D.S. Nai is the Superintendent of Government Govind Singh Mehra Hospital, Ranikhet, who examined the X-ray reports of the victims and determined the age of P.W.1 between 16-18 yeas and the age of P.W.2 between 14-16 years. P.W.7. Head Constable Lacchi Ram Tamta on receiving the written report, prepared the Chik F.I.R. (Ext. A-12) and made entry in the G.D. P.W.8 Dr. P.W.7. Head Constable Lacchi Ram Tamta on receiving the written report, prepared the Chik F.I.R. (Ext. A-12) and made entry in the G.D. P.W.8 Dr. S.S. Bhardwaj is the Senior Pathologist of B.D. Pandey Hospital, Nainital who prepared the medical examination report (Ext. A-10). P.W.10 is S.H.O. Chandra Singh Bist who during investigation recorded statement of complainant, recovered both the victims from the possession of the accused and prepared arrest memo (Ext. A-9). He recorded statements of the accused and thereafter, the investigation was transferred to P.W.9. S.H.O. Sanjay Singh Garbiyal, who during investigation recorded statements of remaining witnesses, after obtaining the medical reports, got recorded the statements of the victims under Section 164 Cr.P.C., prepared the site plan, obtained birth certificates of the victims from concerned Principal. 11. Mr. Dinesh Chauhan, learned counsel for the appellants submitted that the recovery memo prepared by the police is doubtful, inasmuch as, the police mentioned in the recovery memo that the girls along with accused were recovered at Ropadia Taxi Stand on 16.11.2006 but according to the statement of both the victims, the Nepal Police handed over them to Indian Police. He argued that there is contradiction in the statements of the prosecution witnesses, but the Court below has not considered the same and whatever was stated by them against the appellants that is under the pressure of their family members. He contended that the judgment and order dated 14.08.2012 passed by the Court below is against the provisions of Section 354 of Cr.P.C. He submitted that the Court below, without considering entire evidence and material available on record, wrongly convicted the appellants. 12. On the other hand, Mr. Ravindra Singh Bisht, learned Brief Holder for the State submitted that testimony of P.W.1 & P.W.2 cannot be disbelieved. He submitted that the victims were minor at the time of incident and there is no contradiction in the statement of the victims given under Section 164 Cr.P.C. and the one given before the Court. He submitted that considering the fact that a minor girl has been sexually harassed, the sentence passed by the Court below is not too severe. He submitted that the victim was not a consenting party and rape was committed on a minor girl, the sentence passed by the Court below is just. 13. He submitted that considering the fact that a minor girl has been sexually harassed, the sentence passed by the Court below is not too severe. He submitted that the victim was not a consenting party and rape was committed on a minor girl, the sentence passed by the Court below is just. 13. I have considered the submission advanced by the learned counsel for the parties and have perused the papers available on record. As per the doctors’ opinion, radiological age of the victim P.W.1- Meena is between 16-18 years, whereas, as per the School Certificate, the age of Meena, on the date of incident, is less than 16 years. Radiological age of P.W.2- Kamini, as per the doctor, is between 14-16 years, whereas, as per the School Certificate, her age is 13 years. Thus, on the date of incident, both the girls were minor. In their statements, both the girls, clearly stated that they were told that they are being taken for a trip to Nainital. Those minor girls thought that they are being taken to Nainital and will be brought back. They were not aware that they will be taken to Nepal. By considering their statements as well as the statement of father of Kamini, it is clear that they were taken away from their legal guardianship without the consent of their father. Both the girls were recovered on 16.11.2006. P.W.1- Meena, in her statement, stated that on second day (i.e. on 12.11.2006), she was raped by Gulab Singh. Her medical examination was conducted on 17.11.2006 at 01:30 p.m. by the doctor, in which her hymen was found torn. This Court does not find any reason to disbelieve the testimony of minor girls and affirms the judgment of trial Court. The learned counsel for the appellants could not convince the Court to believe that appellants have been falsely implicated by the family members of the girls. 14. Accordingly, the appeals preferred by the accused/appellants are hereby dismissed. The conviction and sentence awarded by the learned Additional Sessions Judge, Almora in Sessions Trial No.3 of 2007 to the accused/appellants is affirmed. The period already spent by the appellants in jail shall be adjusted. 15. The accused/appellants are on bail. Their bail-bonds are hereby cancelled. The accused/appellants be taken in custody immediately to make them to serve out the sentence awarded to them. The period already spent by the appellants in jail shall be adjusted. 15. The accused/appellants are on bail. Their bail-bonds are hereby cancelled. The accused/appellants be taken in custody immediately to make them to serve out the sentence awarded to them. Let a copy of this judgment alongwith the record of the Court below be sent to the trial Court. 16. Let a copy of this order be placed in the connected Criminal Appeal.