JUDGMENT : 1. The instant Criminal Appeal has been preferred against the judgment of conviction dated 01.09.2004 and order of sentence dated 13.09.2004, passed by learned Sessions Judge, Hazaribag, in Sessions Trial No. 361 of 2000, whereby the appellant Piru Khan @ Biru Khan has been convicted for the offence committed and punishable under Sections 363, 366 A and 376 of the Indian Penal Code and has been awarded rigorous imprisonment for five years for the offence committed and punishable under Section 366 A of the Indian Penal Code and rigorous imprisonment for seven years for the offence committed and punishable under Section 376 of the Indian Penal Code. No separate sentence has been awarded so far offence committed under Section 363 of the Indian Penal Code is concerned. All the sentences are directed to run concurrently. However, by the same impugned judgment, the learned trial court has acquitted Md. Azad and Md. Mubarak of all the charges framed against them. 2. The prosecution case is based upon written report submitted by Sahida Khatoon (P.W. 5) before the Officer-in-Charge, Mufassil Police Station, Hazaribag, on 21.09.1999, alleging inter alia that yesterday (on 20.09.1999), the informant along with her daughter-in-law and elder daughter went to Hazaribagh in the morning for treatment. While returning, they came to Mukundganj at 02.00 P.M., where another daughter-in-law of the informant, informed her that Gudiya (victim) is not present in the house as Gudiya has left the house by saying that she is going to meet her friend. At that time Mubarak, Piru Khan and Md. Azad were present in the house of the informant. It is further alleged that these persons have enticed the minor daughter of the informant with bad intention. The informant has further alleged that they have tried their best to search her daughter but she was not found and as such, the informant has claimed, that these three above named accused persons are involved in kidnapping the victim. 3. On the basis of written report of the informant, the police has registered Sadar (M) P.S. Case No. 355 of 1999, dated 21.09.1999, under Sections 363/366 (A) of the Indian Penal Code against Md. Mubarak, Piru Khan and Md. Azad. 4. After investigation, the police has submitted charge sheet vide charge sheet no. 3. On the basis of written report of the informant, the police has registered Sadar (M) P.S. Case No. 355 of 1999, dated 21.09.1999, under Sections 363/366 (A) of the Indian Penal Code against Md. Mubarak, Piru Khan and Md. Azad. 4. After investigation, the police has submitted charge sheet vide charge sheet no. 146 of 1999 dated 22.12.1999, under Sections 363/366 (A)/376/379/120 (B)/34 of the Indian Penal Code against the appellant Piru Khan and second charge sheet has been submitted vide charge sheet no. 22 of 2000 dated 15.03.2000 against Md. Mubarak and Md. Azad, under Sections 363/366 (A)/376/379/120 (B)/34 of the Indian Penal Code. 5. The cognizance of the offence has been taken vide order dated 19.01.2000 against Piru Khan and vide order dated 31.03.2000 against Md. Mubarak and Md. Azad and the case has been committed to the Court of Sessions vide order dated 15.09.2000. 6. The charge has been framed against all the accused persons including the appellant under Sections 363, 366 (A), 379, 120 (B) and 376/34 of the Indian Penal code vide order dated 03.03.2003, while a separate charge has also been framed against the appellant Piru Khan @ Biru Khan under Section 376 of the Indian Penal Code on 05.06.2004, to which the accused persons have pleaded their innocence and thus, they were put under trial. 7. The prosecution, to prove its case, has examined altogether seven witnesses and also exhibited three documents. Hamida Khatoon, elder sister of the victim, has been examined as P.W. 1; Md. Kashim Hussain, brother-in-law of the victim, has been examined as P.W. 2; Saira Bano, sister-in-law of the victim, has been examined as P.W. 3; Gudiya Parween, victim of the case, has been examined as P.W. 4; Sahida Khatoon, mother of the victim and the informant of the case, has been examined as P.W. 5; Dr. R.S. Vandana, the Medical Officer who has examined the victim on 02.10.1999, has been examined as P.W. 6 and Venkatesh Kumar, Officer-in-Charge and the investigating officer of the case, has been examined as P.W. 7. Signature of the victim Gudiya Parween on the statement recorded under Section 164 Cr.P.C., has been proved and marked as Exhibit- 1, injury report of the victim issued by Dr. R.S. Vandana (P.W. 6), has been proved and marked as Exhibit- 2, the F.I.R. has been proved and marked as Exhibit- 3. 8. Signature of the victim Gudiya Parween on the statement recorded under Section 164 Cr.P.C., has been proved and marked as Exhibit- 1, injury report of the victim issued by Dr. R.S. Vandana (P.W. 6), has been proved and marked as Exhibit- 2, the F.I.R. has been proved and marked as Exhibit- 3. 8. After closure of the prosecution evidence, the statement of the accused persons have been recorded on 24.03.2004 under Section 313 Cr.P.C., to which the accused persons have submitted that they are innocent and they have been falsely implicated in this case. No defence witness was examined but certified copy of the F.I.R. of Katkamsandi P.S. Case No. 139 of 2001 registered under Sections 498 A, 323 of the Indian Penal Code and 3/4 of the Dowry Prohibition Act against the appellant Piru Khan and his relatives was instituted on the basis of complaint case filed by Gudiya Parween (victim) has been proved and marked as Exhibit- A and certified copy of the charge sheet of Katkamsandi P.S. Case No. 139 of 2001 has been proved and marked as Exhibit- B. 9. After hearing the parties and on perusal of the records, the learned Trial Court has passed the impugned judgment of conviction and order of sentence against the appellant under Sections 363, 366 (A) and 376 of the Indian Penal Code and acquitted the appellant under Sections 379 and 120 (B) of the Indian Penal Code. Other co-accused persons namely Md. Mubarak and Md. Azad have been acquitted of all the charges framed, by the learned trial court. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, passed by the learned Trial Court, the appellant has preferred the present criminal appeal before this Hon’ble Court, assailing the same. 10. Heard, learned counsel for the appellant Mr. Hemant Kr. Shikarwar assisted by Mrs. Manimala, Advocates. Learned counsel for the appellant, Mr. Hemant Kr. Shikarwar has submitted that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. 10. Heard, learned counsel for the appellant Mr. Hemant Kr. Shikarwar assisted by Mrs. Manimala, Advocates. Learned counsel for the appellant, Mr. Hemant Kr. Shikarwar has submitted that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel for the appellant has further submitted that two major persons have left the house and went to Delhi and entered into a contractual marriage and thereafter, both have established sexual relationship and as such, no offence under Sections 363, 366 A and 376 of the Indian Penal Code are made out against the appellant. Learned counsel for the appellant to strengthen his argument has drawn the attention of this Court towards injury report (Exhibit- 2) issued by Dr. R.S. Vandana (P.W. 6), where the doctor has assessed the age of the victim to be of 16 years and has mentioned that, there is no external or internal injury nor any injury on the private part of the victim, no spermatozoa was found and as such, learned counsel for the appellant has submitted that whatever has happened, that has happened with consent and as such, conviction of the appellant under Sections 363, 366 A and 376 of the Indian Penal Code cannot sustain in the eyes of law. 11. Heard, learned counsel for the State, Mrs. Laxmi Murmu, Additional Public Prosecutor. Learned counsel for the State has submitted that the impugned judgment of conviction and order of sentence is based on the materials available on the record and the learned trial court has rightly convicted the appellant under Sections 363, 366 A and 376 of the Indian Penal Code. Learned counsel for the State has further submitted that, mother of the victim, who has been examined as P.W. 5, has alleged in her written report, which has been marked as Exhibit- 3, that her daughter has been enticed by the accused persons and have been taken away with bad intention. The informant has been examined as P.W. 5, where she has stated that she was informed by her elder daughter-in-law Saira Bano, that Gudiya Parween (victim) is not present in the house. She has categorically stated that Biru Khan (appellant) has called Gudiya Parween on the pretext that his sister has called Gudiya to meet her and thereafter Gudiya Parween has left the house and did not return. She has categorically stated that Biru Khan (appellant) has called Gudiya Parween on the pretext that his sister has called Gudiya to meet her and thereafter Gudiya Parween has left the house and did not return. She has further stated, that Gudiya Parween was taken by the accused with purpose of solemnizing marriage. After recovery of Gudiya Parween and arrest of the appellant Biru Khan @ Piru Khan, the appellant has entered into the contract for marriage with Gudiya Parween in order to save himself but subsequently, after release from the jail custody, appellant has divorced Gudiya Parween. Gudiya Parween (P.W. 4) has stated in the Court that she was taken from house on 20.09.1999 by the accused on false pretext of calling by her friend, who is sister of the appellant. She has further stated that her statement was recorded under Section 164 Cr.P.C. and she has put her signature on that statement, which has been proved and marked as Exhibit- 1. This witness has categorically stated that, at the time of occurrence, she was aged about 14 years. She has further stated that she was taken to Delhi, where she was confined by the appellant and rape was committed with her. On refusal by her (victim) to take meal and when she started crying, then she was brought by the appellant to his house at village Romi, where again she was raped by the appellant. The medical evidence suggests that victim was aged about 16 years, there was no external or internal injury, nor any injury was found on her private part nor spermatozoa was found. Learned counsel for the State has explained that while she was raped, she was under fear and nowhere prosecution has brought on record that she has physically resisted the appellant. The absence of any external or internal injury will not protect the appellant from such charges, when the victim, being a minor girl of 14 years, has put such allegation against the appellant. 12. Learned counsel for the State has drawn the attention of this Court towards different provisions of the Indian Penal Code. Learned counsel for the State has submitted that, section 361 defines reads as follows: “361. 12. Learned counsel for the State has drawn the attention of this Court towards different provisions of the Indian Penal Code. Learned counsel for the State has submitted that, section 361 defines reads as follows: “361. Kidnapping from lawful guardianship – Whoever takes or entices any minor under [sixteen] years of age if a male, or under [eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.” Learned counsel for the State has further submitted that appellant has no authority under law to take away the minor daughter of the informant who is the victim, aged about 14 years and as per the doctor, aged about 16 years admittedly, she was minor at the time of occurrence. Learned counsel for the State has also drawn attention of this Court towards the definition of Section 366 A of the Indian Penal Code which defines: “366-A. Procuration of minor girl – Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.” Learned counsel for the State has further submitted that there is an evidence on record that after kidnapping of minor girl by the appellant, she was taken to Delhi, where she was forced to seduce to illicit sexual intercourse with the appellant and as such, the offence under Section 366 A of Indian Penal Code is made out. Learned counsel for the State has drawn the attention of this Court towards the provisions of section 375 of the Indian Penal Code which defines rape and its punishment which has been defined under Section 376 of the Indian Penal Code. Learned counsel for the State has submitted that there is a clear averment of the victim that twice the appellant has raped her at Delhi and subsequently at his house in the village Romi, Hazaribagh. Learned counsel for the State has submitted that there is a clear averment of the victim that twice the appellant has raped her at Delhi and subsequently at his house in the village Romi, Hazaribagh. Learned counsel for the State has thus, submitted that the evidence brought on record are sufficient for conviction and the learned trial court has rightly convicted the appellant under Sections 363, 366 A and 376 of the Indian Penal Code. Learned counsel for the State has further submitted that the submissions made by the learned counsel for the appellant that victim and appellant were major and they have eloped from their house for entering into a contract of marriage and as such, no offence is made out against the appellant is not sustainable as the victim was minor. Learned counsel for the State has vehemently argued and submitted, that from perusal of the defence document which has been proved and marked as Exhibit A, certified copy of the F.I.R. of Katkamsandi P.S. Case No. 139 of 2001 lodged by the victim Gudiya Parween against the appellant and his relatives under Sections 498 A, 323 of the Indian Penal Code and 3/4 of the Dowry Prohibition Act is dated 20.08.2001, which is after institution of the present case i.e. Sadar P.S. Case No. 355 of 1999 dated 21.09.1999. It appears that, when the appellant was taken into custody, the appellant and his family members adopted a method by entering into a contract of marriage on 25.04.2000, on the basis of which provisional bail was granted to the appellant and the Nikahnama was brought on record. Subsequently, after release of the appellant on bail, on the basis of such nikaahnaama and settlement between the parties, the appellant adopted another method, after release of the appellant, he has divorced his wife Guriya Parween, victim of the case, which forced her to file Complaint Case No. 652 of 2001 before the Chief Judicial Magistrate on the basis of which Katkamsandi P.S. Case No. 139 of 2000, was instituted. Learned counsel for the State has thus, submitted that appellant has rightly been convicted by the learned trial court and the defence document i.e. Exhibit- A and B are not coming in the way to save the appellant from the charge under Sections 363, 366 A and 376 of the Indian Penal Code. Learned counsel for the State has thus, submitted that appellant has rightly been convicted by the learned trial court and the defence document i.e. Exhibit- A and B are not coming in the way to save the appellant from the charge under Sections 363, 366 A and 376 of the Indian Penal Code. Thus, learned counsel for the State has submitted that conviction has been passed by the learned trial court on the basis of material available on record. 13. Heard, learned counsel for the appellant, Mr. Hemant Kr. Shikarwar assisted by Mrs. Manimala, Advocates and learned counsel for the State, Mrs. Laxmi Murmu, Additional Public Prosecutor and perused the materials available on records including the F.I.R., framing of charge, evidence of seven prosecution witnesses, three prosecution exhibits, the statement of the appellant recorded under Section 313 Cr.P.C., the defence Exhibits- A and B and the impugned judgment of conviction and order of sentence. This Court has scrutinised the evidence brought on record. Hamida Khatoon is the elder sister of the victim, who has been examined as P.W. 1, has supported the prosecution case as hearsay witness. Md. Kasim Hussain, brother-in-law of the victim has been examined as P.W. 2 and has also supported the prosecution case as hearsay witness. Saira Bano is the sister-in-law of the victim and an eye-witness to the occurrence, as the victim Gudiya Parween left her house on false pretext taken by the appellant Piru Khan and since then Gudiya Parween, has not returned to her house. This witness has informed everything to her mother-in-law Sahida Khatoon, who is the informant of the case, and the mother of the victim. Sahida Khatoon (P.W. 5) has also supported the prosecution case. Dr. R.S. Vandana (P.W. 6) Medical Officer, who has examined the victim Gudiya Parween has assessed the age of the victim to be 16 years. The doctor has proved the injury report which has been marked as Exhibit- 2. Venkatesh Kumar is the investigating officer of the case and has been examined as P.W. 7. This witness has investigated the case and on the basis of material collected during investigation, found the case to be true and submitted charge sheet against the appellant. Nothing has been elucidated by the defence in the cross-examination of any of the prosecution witnesses to disbelieve the prosecution case. This witness has investigated the case and on the basis of material collected during investigation, found the case to be true and submitted charge sheet against the appellant. Nothing has been elucidated by the defence in the cross-examination of any of the prosecution witnesses to disbelieve the prosecution case. From the evidence, it appears to the court that on false pretext, the appellant asked Gudiya to meet his sister, who is friend of Gudiya and has taken away this minor girl from her house to Delhi where she was confined, raped and when the victim started crying and refused to take meal, the appellant brought her to his house at Romi, Hazaribag, kept her in a room, again committed rape with her. Thereafter both were taken by the police. While the appellant was in custody, appellant along with his family members pressurised the family of Gudiya Parween to contract marriage between them and on the basis of such agreement, appellant was released on provisional bail. The appellant came out of jail and produced the Nikahnaama in the Court, which is apparent from the order sheets dated 10.05.2000 passed in B.P. No. 337 of 2000 whereby petition along with photocopy of Nikaahnama and joint photograph of the marriage of the complainant and the appellant has been filed and lateron the appellant Piru Khan tortured the victim Gudiya Parween for which Katkamsandi P.S. Case No. 139 of 2001 (Exhibit- A) has been filed under Sections 498 A, 323 of the Indian Penal Code and 3/4 of the Dowry Prohibition Act and as such, the defence Exhibit- A and B also proves that victim Gudiya Parween was raped prior to entering into contract of marriage by the appellant with Gudiya Parween. 14. Thus, this Court is of the opinion that conviction of the appellant under Section 363 for kidnapping the victim from the lawful guardianship has been rightly passed by the learned trial court and conviction of the appellant under Section 376 of the Indian Penal Code is also rightly passed by the learned trial court. 15. 14. Thus, this Court is of the opinion that conviction of the appellant under Section 363 for kidnapping the victim from the lawful guardianship has been rightly passed by the learned trial court and conviction of the appellant under Section 376 of the Indian Penal Code is also rightly passed by the learned trial court. 15. In result, the impugned judgment of conviction dated 01.09.2004 and order of sentence dated 13.09.2004, passed by learned Sessions Judge, Hazaribag, in Sessions Trial No. 361 of 2000, in connection with Sadar (M) P.S. Case No. 355 of 1999, corresponding to G. R. No. 1595 of 1999 is hereby upheld and affirmed and the appellant is directed to surrender before the learned trial court forthwith to serve out the sentence as awarded by the learned trial court. 16. The appellant, who is on bail, his bail bond is cancelled and if the appellant fails to surrender before the learned trial court, the learned trial court is directed to issue processes for procurement of attendance of the appellant to serve out the rest of the sentence. 17. Accordingly, the present criminal appeal is dismissed. 18. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action. Appeal dismissed.