JUDGMENT Kailash Prasad Deo, J. - Both the Criminal Appeals have been preferred against the judgment of conviction dated 21.11.2003 and order of sentence dated 22.11.2003, passed by learned Additional Sessions Judge, Fast Track Court No. 5, Hazaribagh, in Sessions Trial No. 11/1998, whereby all the five appellants (in two criminal appeals) have been convicted by the learned trial court for the offence committed and punishable under Sections 363, 366 and 120 (B) of the Indian Penal Code and appellant Lakhan Ram has further been convicted for the offence committed and punishable under Section 376 of the Indian Penal Code. The learned trial court has awarded rigorous imprisonment for seven years with a fine of Rs. 500/- and in case of default in payment of fine, further rigorous imprisonment for two months for the offence committed and punishable under Section 376 of the Indian Penal Code against Lakhan Ram (appellant in Cr. Appeal (SJ) No. 29 of 2004). Apart from this, all the accused persons including Lakhan Ram have been awarded rigorous imprisonment for five years with fine of Rs. 200/- and in case of default in payment of fine, further rigorous imprisonment for one month, separately for the offence committed and punishable under Sections 363, 366 and 120 (B) of the Indian Penal Code. All the sentences are directed to run concurrently. 2. The prosecution case is based upon the fardbeyan of Md. Yusuf (P.W. 3), recorded by Sub Inspector of Police P.R. Sharma of Katkamsandi Police Station, on 31.03.1997 at 12.00 Noon at village Sultana. The informant has stated that yesterday i.e. on 30.03.1997, his daughter namely Saleha Khatoon @ Guddi, aged about 14 years went to bring water from the hand-pump at around 4.00 A.M. but she did not return. After 15-20 minutes, the informant and other persons started searching the victim. During search, it transpired that a covillager namely Lakhan Ram son of Ramlal Ram, village Sultana, P.S. Katkamsandi, District Hazaribagh, has taken away the daughter of the informant. The informant has further stated that he got knowledge that few days ago Pappu @ Anil Kumar, son of Narsing Ram and Lakhan Ram, both came in the courtyard of informant for washing their hands at the hand pump and were talking and joking with the daughter of informant, which was witnessed by Md. The informant has further stated that he got knowledge that few days ago Pappu @ Anil Kumar, son of Narsing Ram and Lakhan Ram, both came in the courtyard of informant for washing their hands at the hand pump and were talking and joking with the daughter of informant, which was witnessed by Md. Mumtaz, son of the informant, who has scolded both the persons and thereafter both the persons fled away. The informant has further stated that the house of Pappu is situated in front of the house of informant and on that day, when the daughter of informant came out of her house, friends of Pappu namely Lalkeshwar @ Laleshwar @ Lalu, son of late Ughal Ram, resident of Hurhuru P.S. Sadar, District- Hazaribagh along with Lakhan Ram were teasing the daughter of the informant. The daughter of the informant has disclosed this fact to the nephew of informant Md. Zabbar and thereafter complaint was made to their family members. It is also stated by the informant that, prior to the occurrence Lakhan, Laleshwar @ Lalu and Pappu were sitting in the house of Pappu and were trying to deceitfully induce the daughter of the informant. The informant has stated that his daughter Saleha @ Guddi has been kidnapped by Pappu @ Anil Kumar, Lakhan, Lalkeshwar @ Laleshwar @ Lalu, who are studying together at Coloumbus College, Hazaribagh. The informant has further stated that during enquiry, it transpired that Prakash, son of Bano Ram, Jitendra Kumar, son of Khemlal Ram, both resident of Sultana P.S. Katkamsandi, District- Hazaribagh have also assisted them. The informant has explained the delay occurred in informing to the police as he was enquiring about the matter. 3. On the basis of the fardbeyan of the informant, police has registered Katkamsandi P.S. Case No. 27 of 1997 dated 31.03.1997, under Sections 363, 366 and 120 (B) of the Indian Penal Code against five named accused persons and subsequently Section 376 of the Indian Penal Code has been added vide order dated 03.08.1997. During investigation, the victim was recovered by Rajasthan State police along with appellant Lakhan Ram and both have been arrested and information was given to the Hazaribagh Police, who went along with brother of the victim and brought her to Hazaribagh on 06.08.1997. During investigation, the victim was recovered by Rajasthan State police along with appellant Lakhan Ram and both have been arrested and information was given to the Hazaribagh Police, who went along with brother of the victim and brought her to Hazaribagh on 06.08.1997. The victim Saleha Khatoon was brought before the learned Magistrate for recording her statement under Section 164 CrPC but on the request of the victim, an adjournment for one month has been granted as she was not feeling mentally stable and subsequently, the victim was examined under Section 164 CrPC on 24.09.1997. Father of the victim and informant of the case, Md. Yusuf has also been examined under Section 164 CrPC on 24.09.1997. The statement of the victim for adjournment on 06.08.1997 has been proved and marked as Exhibit- 2/3 and the statement of the victim recorded under Section 164 CrPC on 24.09.1997 has been proved and marked as Exhibit- 2/1 and the statement of the father of the victim and informant of the case recorded under Section 164 CrPC has been proved and marked as Exhibit- 2/2. 4. After investigation, the police has submitted charge sheet against all the five named accused persons under Sections 363, 366 and 120 (B) and 376 of the Indian Penal Code vide chargesheet no. 80 of 1997 dated 05.01.1998. 5. The cognizance of the offence has been taken vide order dated 31.10.1997 and the case has been committed to the court of Sessions vide order dated 31.10.1997. 6. The charge has been framed against all the five accused/appellants under Sections 363, 366, 120 (B) of the Indian Penal Code and further charge has been framed under Section 376 of the Indian Penal Code only against accused/ appellant Lakhan Ram vide order dated 24.02.1999. The accused/appellants have pleaded their innocence and thus, they were put under trial. 7. The prosecution, to prove its case, has examined altogether fourteen witnesses and also exhibited three documentary evidence. Md. Salauddin, an eye-witness of the occurrence has been examined as P.W.1, Md. Ilyas, another eye-witness to the occurrence has been examined as P.W. 2, Md. Yusuf, informant and father of the victim has been examined as P.W. 3, Zulekha Khatoon, mother of the victim has been examined as P.W. 4, Saleha Khatoon @ Guddi, victim of the case, has been examined as P.W.5, Dr. Ilyas, another eye-witness to the occurrence has been examined as P.W. 2, Md. Yusuf, informant and father of the victim has been examined as P.W. 3, Zulekha Khatoon, mother of the victim has been examined as P.W. 4, Saleha Khatoon @ Guddi, victim of the case, has been examined as P.W.5, Dr. R.S. Bandana, Medical Officer, who has examined the victim on 04.08.1997, has been examined as P.W. 6, Md. Quazim, former sarpanch of the village, has been examined as P.W. 7, Md. Rafiq Ansari, Mukhiya of the village, has been examined as P.W. 8, Md. Zabbar, cousin of the victim, has been examined as P.W. 9, Salama Khatoon, sister of the victim has been examined as P.W. 10, Md. Aftab, a hearsay witness has been examined as P.W. 11, Smt. Seema Sinha, learned Judicial Officer, has been examined as P.W. 12, Sahadat Hussain, a hearsay witness has been examined as P.W. 13 and Saryu Shaw, another hearsay witness has been examined as P.W. 14. The signature of the informant Md. Yusuf (P.W. 3) on the fardbeyan has been proved and marked as Exhibit- 1, the signature of the victim on her statement recorded under Section 164 CrPC dated 24.09.1997 has been proved and marked as Exhibit- 2, statements of the victim recorded under Section 164 CrPC on 24.09.1997 and 06.08.1997 have been proved and marked as Exhibits2/1 and 2/3 respectively, the statement of the informant Md. Yusuf recorded under Section 164 CrPC dated 24.09.1997 has been proved and marked as Exhibit- 2/2 and the injury report of victim dated 04.08.1997 has been proved and marked as Exhibit- 3 by the Medical Officer, Dr. R.S. Bandana (P.W. 6). 8. After closure of the prosecution evidence, the statement of the accused/appellants were recorded under Section 313 Cr.P.C. on 09.04.2003, to which accused/appellants have submitted that they have been falsely implicated in this case on the basis of false evidence. The defence has not examined any witnesses but petition dated 28.06.1997 has been brought on record, which has been marked as ''X'' for identification without any objection from the prosecution, although, the same has not been proved by any defence witness. 9. The defence has not examined any witnesses but petition dated 28.06.1997 has been brought on record, which has been marked as ''X'' for identification without any objection from the prosecution, although, the same has not been proved by any defence witness. 9. After hearing the parties and on perusal of the materials on record, the learned Trial Court has passed the impugned judgment of conviction and order of sentence holding all the five accused persons guilty for the offence committed and punishable under Sections 363, 366 and 120 (B) of the Indian Penal Code and Lakhan Ram (in Cr. Appeal (SJ) No. 29 of 2004) further for the offence committed and punishable under Section 376 of the Indian Penal Code. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, two criminal appeals have been preferred by the appellants before this Hon''ble Court. 10. Heard, learned counsels for the appellants, Mr. Hemant Kumar Shikarwar in Cr. Appeal (SJ) No. 1751 of 2003 and Mr. Abhishek Prasad assisted by Mr. Nilesh Kumar, Advocates in Cr. Appeal (SJ) No. 29 of 2004. Learned counsels for the appellants have submitted that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsels for the appellants have submitted that the learned trial court without scrutinizing the evidence of the prosecution witnesses has wrongly convicted the appellants under Sections 363, 366 and 120 (B) of the Indian Penal Code and Lakhan Ram further under Section 376 of the Indian Penal Code. Learned counsels for the appellants have further submitted that the investigating officer has not been examined in this case and as such, serious prejudice has been caused to the appellants Prakash Ram, Jitendra Ram, Anil Kumar @ Pappu, as the evidence of P.W. 1 Md. Saluaddin and P.W. 2 Md. Ilyas suggests that three persons being co-villagers, have no role in kidnapping the victim Saleha Khatoon, who fled away in a Maruti van along with Lakhan Ram and Laleshwar @ Lalkeshwar @ Lalu. Learned counsel for the appellant Mr. Hemant Kr. Shikarwar has submitted that P.W. 1 Md. Salauddin and P.W. 2 Md. Saluaddin and P.W. 2 Md. Ilyas suggests that three persons being co-villagers, have no role in kidnapping the victim Saleha Khatoon, who fled away in a Maruti van along with Lakhan Ram and Laleshwar @ Lalkeshwar @ Lalu. Learned counsel for the appellant Mr. Hemant Kr. Shikarwar has submitted that P.W. 1 Md. Salauddin and P.W. 2 Md. Ilyas have not supported the version of the victim Saleha Khatoon, so far manner of kidnapping is concerned as adduced by her, while examining as P.W. 5, but these two witnesses have not been declared hostile by the prosecution. Learned counsels for the appellants have jointly submitted that non-examination of Mahavir Mistri, who is a co-villager and eye-witness to the occurrence, as per the evidence of prosecution witnesses, has caused serious prejudice to the appellants. Learned counsels for the appellants have thus, submitted that conviction of the appellants on the testimony of P.W. 5 Saleha Khatoon @ Guddi is not reliable and as such, the appellants are entitled for benefit of doubt. 11. Heard, learned counsel for the State, Mr. Abhay Kumar Tiwary, Additional Public Prosecutor. Learned counsel for the State has vehemently argued the case and has submitted that evidence of the prosecution witnesses coupled with the fact that the evidence of the victim Saleha Khatoon @ Guddi, who has been examined as P.W. 5 and the evidence of Medical Officer, Dr. R. S. Bandana (P.W. 6) are sufficient for convicting these appellants under Sections 363, 366 and 120 (B) of the Indian Penal Code and Lakhan Ram (in Cr. Appeal (SJ) No. 29 of 2004) further for the offence under Section 376 of the Indian Penal Code. Learned counsel for the State has further submitted that nonexamination of Mahavir Mistri has not caused any prejudice to the appellants as P.W. 1 Md. Salauddin and P.W. 2 Md. Ilyas are the chance eye-witnesses, have seen all these five accused persons along with the victim near white Maruti van. Learned State Counsel has further submitted that from mere perusal of the fardbeyan of the informant P.W. 3 Md. Yusuf, it is apparent that conduct of these five accused persons in kidnapping the victim in a criminal conspiracy is sufficient. Learned State counsel has further submitted that Dr. Learned State Counsel has further submitted that from mere perusal of the fardbeyan of the informant P.W. 3 Md. Yusuf, it is apparent that conduct of these five accused persons in kidnapping the victim in a criminal conspiracy is sufficient. Learned State counsel has further submitted that Dr. R.S. Bandana, Medical Officer (P.W. 6), who has examined the victim on 04.08.1997 and proved the injury report of the victim which has been marked as Exhibit- 3 has categorically opined the age of the victim to be 14-15 years. Learned State counsel has thus, referred Section 363 of the Indian Penal Code, which reads as follows: "363. Punishment for kidnapping. - Whoever kidnaps any person from [India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine." Learned State Counsel, Mr. Abhay Kumar Tiwary, Additional Public Prosecutor has thus submitted that victim Saleha Khatoon @ Guddi, being a minor, has been kidnapped by these persons and as such, conviction under Section 363 of the Indian Penal Code, passed by the learned trial court, on the basis of the materials available on record. Learned counsel for the State, Mr. Abhay Kumar Tiwary has further submitted that conviction of the appellants under Section 366 of the Indian Penal Code, is also sustainable in the eyes of law, in view of the evidence adduced by P.W. 5 Saleha Khatoon @ Guddi, victim of the case, who has categorically stated that after commission of rape by Lakhan Ram (appellant in Cr. Appeal (SJ) No. 29 of 2004), she heard Lakhan Ram talking with a stranger for selling her and as such, the conviction of the appellants under Section 366 of the Indian Penal Code is also sustainable in the eyes of law. Learned State Counsel has referred Section 366 of the Indian Penal Code, which reads as follows: "366. Kidnapping, abducting or inducing woman to compel her marriage, etc. Learned State Counsel has referred Section 366 of the Indian Penal Code, which reads as follows: "366. Kidnapping, abducting or inducing woman to compel her marriage, etc. - Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; [and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid.]" Learned State counsel has buttressed his argument on the basis of the evidence adduced by the prosecution witnesses. Learned State Counsel has submitted that all the five accused persons are involved in conspiracy for kidnapping the victim and subsequently the victim was taken away in intoxicated condition by Lakhan Ram by train to the district of Dausa in the State of Rajasthan, where Lakhan Ram was trying to sale her and as such, the cumulative effect of the evidence of the prosecution witnesses amply proves the charge under Section 366 of the Indian Penal Code against all the five accused persons. Learned counsel for the State has further submitted that evidence of conspiracy under Section 120 (B) of the Indian Penal Code is to be gathered from circumstance. From perusal of the fardbeyan of the informant coupled with the evidence of P.W. 1, Md. Salauddin and P.W. 2 Md. Ilyas, both chance eye-witnesses to the occurrence and the evidence of P.W. 5, Saleha Khatoon @ Guddi and her statements recorded under Section 164 CrPC, which have been brought on record as Exhibits- 2/1 and 2/3, it appears that charge under Section 120 (B) of the Indian Penal Code has been sufficiently proved. Salauddin and P.W. 2 Md. Ilyas, both chance eye-witnesses to the occurrence and the evidence of P.W. 5, Saleha Khatoon @ Guddi and her statements recorded under Section 164 CrPC, which have been brought on record as Exhibits- 2/1 and 2/3, it appears that charge under Section 120 (B) of the Indian Penal Code has been sufficiently proved. The conduct of these accused persons in facilitating the main accused Lakhan Ram for taking the girl in the morning at 4.00 A.M. in a Maruti Van, shows their criminal conspiracy in commission of the offence. Learned counsel for the State has further submitted that as per the evidence of P.W. 5 Saleha Khatoon @ Guddi, rape was committed by appellant Lakhan Ram, upon the victim comes under: Clause - I - against her will Clause - II - without her consent Clause - III - With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Clause - VI - With or without her consent, when she is under sixteen years of age, As contemplated under Section 375 of the Indian Penal Code, where rape has been defined, as such, conviction of the appellant Lakhan Ram (in Cr. Appeal (SJ) No. 29 of 2004) is well proved and the learned trial court has rightly convicted the appellant Lakhan Ram for the offence committed and punishable under Section 376 of the Indian Penal Code. Learned State Counsel has thus, submitted that the impugned judgment of conviction and order of sentence does not warrant any interference by this Hon''ble Court, at this stage. 12. Heard, learned counsels for the appellants, Mr. Hemant Kumar Shikarwar in Cr. Appeal (SJ) No. 1751 of 2003 and Mr. Abhishek Prasad assisted by Mr. Nilesh Kumar, Advocates in Cr. Appeal (SJ) No. 29 of 2004 and learned counsel for the State, Mr. Abhay Kumar Tiwary, Additional Public Prosecutor and perused the materials available on record, i.e. F.I.R., framing of charge, evidence of fourteen prosecution witnesses, prosecution exhibits up to Exhibit3, the statement of the appellants recorded under Section 313 CrPC, the document brought on record by the defence, which has been marked as ''X'' for identification and the impugned judgment of conviction and order of sentence. This Court has scrutinized the evidence of the prosecution witnesses. Md. Salauddin (P.W. 1) and Md. This Court has scrutinized the evidence of the prosecution witnesses. Md. Salauddin (P.W. 1) and Md. Ilyas (P.W. 2) are the chance witnesses, who have found the victim along with these five appellants near the Maruti Van. Md. Yusuf, father of the victim being the informant of the case (P.W. 3) has adduced evidence before the Court with respect to criminal conspiracy and the previous conduct of the appellants, few days before the occurrence and to that effect complaint was made to their parents. Zulekha Khatoon (P.W. 4) mother of the victim and wife of the informant has also supported the version of her husband (P.W. 3). Saleha Khatoon (P.W. 5), victim of the case has categorically stated that Anil Kumar @ Pappu has gagged her mouth from the back and all the accused persons lifted her in a Maruti Van and has taken her to the nearest railway station after intoxicating her and subsequently the victim was taken by train to Rajasthan by accused Lakhan Ram in intoxicated condition, where she was kept confined in a room for four months and raped forcibly by giving threat. The victim has categorically stated that she could not disclose this to any one, rather when she heard that appellant Lakhan Ram is trying to sale her to some unknown person, she disclosed this fact to an old lady of Rajasthan, who informed the same to Rajasthan Police. On the basis of that information both Lakhan and victim were taken by the Rajasthan Police in their custody and information was given to the Bihar Police. Thereafter, Bihar Police along with brother of the victim went to Rajasthan and brought her to Hazaribagh. Dr. R.S. Bandana (P.W. 6) has assessed the victim to be a girl of 14-15 years. Md. Quasim (P.W. 7) and Md. Rafiq (P.W. 8) are hearsay witnesses. Md. Zabbar (P.W. 9), cousin of the victim, has supported the prosecution case and the incident prior to the occurrence. Salma Khatoon (P.W. 10), sister of the victim has also supported the prosecution case. Md. Aftab (P.W. 11) is also a hearsay witness. Smt. Seema Sinha (P.W. 12), the learned Judicial Officer, who has recorded the statement of the victim and her father under Section 164 CrPC, has been examined as P.W. 12 and proved the same as Exhibit- 2 series. Md. Aftab (P.W. 11) is also a hearsay witness. Smt. Seema Sinha (P.W. 12), the learned Judicial Officer, who has recorded the statement of the victim and her father under Section 164 CrPC, has been examined as P.W. 12 and proved the same as Exhibit- 2 series. Sahadat Hussain (P.W. 13) and Saryu Shaw (P.W. 14) are also hearsay witnesses. 13. This Court has minutely scrutinized the statements of the appellants recorded under Section 313 CrPC. No such explanation has been given by the appellants for taking the victim or taking the minor girl without permission of her guardian nor they have explained the reason for false implication, no such explanation has been given by the appellants under Section 313 CrPC to disbelieve the evidence of victim Saleha Khatoon @ Guddi (P.W. 5). 14. In the above facts and circumstances of the case, the impugned judgment of conviction dated 21.11.2003 and order of sentence dated 22.11.2003, passed by learned Additional Sessions Judge, Fast Track Court No. 5, Hazaribagh, in Sessions Trial No. 11/1998, arising out of Katkamsandi P.S. Case No. 27 of 1997, corresponding to G.R. No. 453/1997 in both the appeals are hereby affirmed and upheld. Accordingly, the conviction and sentence awarded by the learned trial court is also affirmed. 15. The appellants, who are on bail, their bail bonds are hereby cancelled to serve out rest of the sentence as awarded by the learned trial court. All the appellants named above, are directed to surrender before the learned trial court forthwith to serve out rest of their sentence. 16. In the result, both the criminal appeals are dismissed. 17. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.