JUDGMENT : 1. Heard Ms. Rashmi Srivastava, learned Amicus Curiae for the appellant and Sri B.A. Khan, learned A.G.A. for the State. 2. This Appeal has been filed by the appellants, Kalletariya and Bhola against the judgement and order dated 12.03.1982 passed by Additional Sessions Judge XI, Agra in S.T. No. 404 of 1979 convicting the appellants under Sections 363, 366 I.P.C. and sentencing them each to undergo three years R.I. for each offence and also to pay a fine of Rs. 500/-for each offence and in default of payment, the appellants have further been directed to undergo R.I. for three months and both the sentences are directed to run concurrently. 3. Out of the two appellants, Kalletariya and Bhola, Bhola has expired and his appeal has been abated vide this Court's order dated 5.01.2019, therefore before this Court, Appeal of Kalletariya remains which is being taken up. 4. As per prosecution version as narrated in F.I.R., the victim/first informant, Vidya aged about 16 years was living with her father, Dhanvaj under his guardianship in village Ram Nagariya, P.S. Jaitpur, District Agra who was earlier married to one Karua. She stayed in her matrimonial home only for four to five days, thereafter she returned to her father's house and was living there since then continuously. Her Gauna had not taken place. The accused, Kalletariya was a resident of village, Nagaria, P.S. Pattora, District Agra who was jeth of the victim and at the time of occurrence, he used to work at the place of Village Pradhan, Dhandhu and used to often visit the house of victim and the accused appellant no. 2, Bhola (deceased) was his companion. On 10.01.1978, at about 8:30 a.m. when she had gone to ease herself out, both the appellants had met her and gave her temptation that they would provide her good clothes and jewellery and thus, in this way they beguiled her. 2, Bhola (deceased) was his companion. On 10.01.1978, at about 8:30 a.m. when she had gone to ease herself out, both the appellants had met her and gave her temptation that they would provide her good clothes and jewellery and thus, in this way they beguiled her. On their said promise, the victim accompanied them whereafter the appellant along with co-accused took her to sookhatal where in the field of arhar, at the point of knife and giving her threat to kill, she was forcibly raped by both of them, thereafter appellants took her to Mauran where she was kept in the house of Bhola for about two and a half hours and from there, appellant along with co-accused took her to Kori Kuan and from there, she was taken in a bus to Etawah. When the said bus stopped at Oodi Mod, there, constables and an inspector came, whom she narrated the entire story and then both the appellants were arrested by police, thereafter the said police personnel had brought driver, conductor, Gambhir Singh and Ram Autar respectively along with informant to P.S. Badhpura where the victim narrated the entire story and on her oral statement, a report was lodged on 10.01.1978 at 6:30 p.m. at P.S. Badhpura, District Etawah on the basis of which chick F.I.R., Exhibit Ka-1 and G.D., Exhibit Ka-2 were prepared, thereafter police also took into possession victim's petticoat and the underwear of Kalletariya, recovery memo of which is mentioned as Exhibit Ka-3. On the next day, i.e. on 11.01.1978 at about 6:00 p.m., medical examination of the victim was conducted by Dr. S. Bhatiya at Agra and medical examination report, Exhibit Ka-4 was prepared by her. Thereafter police brought the accused from Badhpura to P.S. Jaitpur and G.D., Exhibit-9 was prepared. The investigation of this case was assigned to I.O. who prepared site-plan as Exhibit Ka-5 and Exhibit Ka-6 and recorded statements of other witnesses and submitted charge-sheet, Exhibit Ka-8 against the appellants under Section 363, 366, 368 and 376 I.P.C. 5. Against the accused appellant, Kalletariya, charges under Sections 363, 366 and 376 I.P.C. were framed to which he pleaded not guilty and claimed to be tried. 6. From the side of prosecution, as many as seven witnesses have been examined. Against the accused appellant, Kalletariya, charges under Sections 363, 366 and 376 I.P.C. were framed to which he pleaded not guilty and claimed to be tried. 6. From the side of prosecution, as many as seven witnesses have been examined. P.W. 1, Vasdev Singh is a witness of fact, P.W. 2, Constable Girish Chand of P.S. Badhpura has proved F.I.R., Exhibit Ka-1, G.D., Exhibit Ka-2, Recovery Memo, Exhibit Ka-3 and also Material Exhibits, Petticoat and under-wear, Material Exhibit-1 and Material Exhibit-2. P.W. 3 is Dr. S. Bhatiya who conducted the medical examination of the victim and has proved medical examination report, Exhibit Ka-4. The victim herself was examined as P.W.4. S.I., Sri Ratan Lal who has investigated the case was examined as P.W.5 and has proved site-plan, Exhibit Ka-5 to Exhibit Ka-7 and also charge-sheet, Exhibit Ka-8. Bharat Kishore, P.W. 6 was posted at P.S., Badhpura, Etawah as a constable and had come to the P.S. Jaitpur along with accused with other papers, has been examined. P.W. 7 is Head-Constable, Udal Singh who was posted at P.S. Jaitpur as Head Moharrir and has proved G.D. as Exhibit Ka-9. 7. Thereafter prosecution evidence was closed and statement of accused was recorded under Section 313 Cr.P.C. in which he has stated that he was falsely implicated in this case. He lived in village, Nagaria, District Etawah with his sister and he did not make frequent visit to the house of victim. The victim was married to his cousin brother. He had not abducted or kidnapped her nor did he commit any rape upon her. He was going from Vahvah to Chamarpura in Etawah in his relationship and husband of the victim, Kalua started having quarrel with him at Oodi Mod and because of that, the police had arrested and challaned him. There was an old enmity between him and Kalua and both of them did not visit each other's house. Kalua was also sitting in the same bus in which the victim was sitting and there, both of them had a quarrel and because of enmity with Kalua, the appellant has been falsely implicated in this case. In defence, one witness, Puttu Singh was examined as D.W.-1. 8. Learned Amicus Curiae for the appellant has argued that appellant was falsely implicated in this case. In defence, one witness, Puttu Singh was examined as D.W.-1. 8. Learned Amicus Curiae for the appellant has argued that appellant was falsely implicated in this case. There is no evidence against him on record and yet, trial court has proceeded to convict him and, accordingly, the judgement needs to be set-aside. If the accused is found to be guilty, he should be given benefit of Probation of Offenders Act, 1958 and be released on probation. 9. In this case, the most important witness is the victim herself who has been examined as P.W. 4, therefore her testimony has to be scrutinized very minutely and cautiously. She has stated that she was living with her father at Ram Nagaria, P.S Jaitpur and the accused appellant, Kalletariya was employed by the village Pradhan of the said village, Dhandhu and the said accused frequently came to the house of victim. The said accused was her jeth. On the date of occurrence at about 8.30 a.m., when she had gone to attend the nature's call, accused appellant and other co-accused had met her and both of them had given her temptation that they would provide her good clothes and jewellery and that she would be married to accused appellant, Kalletariya and at this, she proceeded with them and thereafter they had taken her to sookhatal and at the point of knife, she was raped by them in the field of arhar against her wish, thereafter the accused had taken her to village, Mauran in the house of Bhola and remained there for two and a half hours and from there, she was taken to Kori Kuan and from there, she was taken to Etawah by bus. When the said bus stopped at Oodi Mod, she saw policemen there, after seeing them, she raised an alarm and, thereafter she revealed all the details to them pursuant to which, the appellants were arrested and were taken to P.S. Badhpura where the victim lodged a report and, thereafter she was taken to P.S. Jaitpur along with accused. 10. When the said bus stopped at Oodi Mod, she saw policemen there, after seeing them, she raised an alarm and, thereafter she revealed all the details to them pursuant to which, the appellants were arrested and were taken to P.S. Badhpura where the victim lodged a report and, thereafter she was taken to P.S. Jaitpur along with accused. 10. In cross-examination, several questions were put to her which were superfluous such as when she was going for easing herself out; whether she had any 'lota' regarding which she had stated that the accused had got the said lota thrown away but when asked as to why the same was not written in F.I.R., no cogent reply could be given by her but such kind of minor and insignificant questions and their answers would not impact the case adversely. She further stated in her cross-examination that she was given temptation of good jewellery and good clothes by the appellant and she fell prey to the same because of immaturity and proceeded with the accused. Several questions were also asked with respect to the time as to when she reached Oodi Mod and some discrepancies have been noticed in reply to the same and it was argued that if her testimony be taken into consideration in totality, the hours which she is stated to have consumed in travelling from one place to another before reaching the Oodi Mod by 5:00 p.m., the same would not bear out to be true, therefore her statement should not be believed. But it has also come on record that she is an illiterate lady, hence, such kind of discrepancies for difference in time may be very natural and on this count alone, her statement cannot be disbelieved. One more important aspect regarding which she was cross-examined was the knife which she is said to have been shown at the time of commission of offence, the same was not found to have been entered in police record as there was no recovery memo of the same, therefore, it cannot be concluded that she was taken away from her house under threat and later on rape was committed upon her by showing her knife and she had gone out of her own free will with the accused. The said argument also does not stand good because if the said knife was not taken into possession by the I.O. that would be taken as fault on the part of I.O. and not on the part of victim. As regards her consent being there in going with the accused, the same cannot be taken as free consent because in F.I.R., she has stated herself to be 16 years of age on the date of occurrence and in statement of P.W. 3, Dr. S. Bhatiya, in elbow joint of the victim, Epiphysis was found fused in metaphysic and in wrist joint, Epiphysis with Metaphysic was not found fused completely and on that basis, she had opined that her age could not be 19 years because such fusion takes place at the age of 18 years and in the case at hand when in the wrist joint, Epiphysis with Metaphysic was not found fused completely that would mean that she was less than 18 years, therefore, the prosecution version that the victim was minor at the date of occurrence, so could not give consent to accompany the accused appellant has substance and when she was tempted to accompany the accused that would mean that she was taken away by the accused appellant without her consent. 11. Next important statement is that of P.W. 1, S.I. Vasdev Singh who has stated in his examination-in-chief that on 10.01.1978, he was posted at chauki, Oodi Mod, P.S. Badhpura, District Etawah as In-charge of the chauki. On the said date at about 5.00 p.m., one bus was standing in front of the said chauki and he heard a sound 'bachao' of a girl, on which he along with Constables Ashok and Indradev reached the bus stand and enquired from the said girl as to what happened then she revealed that these accused i.e. Kalletariya and Bhola had beguiled her away at about 8:30 O' clock that they would provide her ornaments and good clothes and was being taken away with a view to marrying her. They had committed rape upon her near sookhatal in the village in the field of arhar and, thereafter she was taken to village, Mauran at the place of Bhola where she was kept for 2-3 hours and from there, she was brought to Kori Kuan and after making her aboard the bus, she was taken to Etawah. They had committed rape upon her near sookhatal in the village in the field of arhar and, thereafter she was taken to village, Mauran at the place of Bhola where she was kept for 2-3 hours and from there, she was brought to Kori Kuan and after making her aboard the bus, she was taken to Etawah. The said statement was made by the victim in presence of Ram Autar and one another, thereafter after arresting the said accused persons, he had taken them to P.S., Badhpura, District Etawah where the report of the victim/informant was lodged. 12. In cross-examination, this witness has stated that there were few shops situated near the bus stand and several people had come there during the time when the victim narrated her version but he did not make them witnesses in this case. The said witnesses were not resident of Oodi Mod but are of the villages which are located nearby. In the said bus, about 30-35 passengers were aboard. Several other questions were put to him with respect to the direction in which the bus was facing etc. but they are not very relevant. 13. In cross-examination, nothing such has emerged which would make his testimony/examination-in-chief to be impeachable and his statement proves this much that the victim had cried aloud at Oodi Mod, hearing which, this witness had reached on the spot along with other police personnel and she was being accompanied by the accused appellant and other co-accused in the said bus. 14. Constable, Girish Chandra (P.W.2) is a formal witness. He has proved only F.I.R., Exhibit Ka-1 and the G.D. of Registration of case, Exhibit Ka-2. This witness was also recalled on 22.09.1981 and has proved the material Exhibits 1 and 2 i.e. Petticoat of the victim and under-wear of the accused. 15. Dr. S. Bhatiya has been examined as P.W.3 who has stated in examination-in-chief that on 11.1.1978 at about 6.00 p.m., the informant/victim, Vidya was brought before her for being medically examined. She did not find any external injury on her body. Hymen was found torn, old and healed. No spermatozoa was found. 15. Dr. S. Bhatiya has been examined as P.W.3 who has stated in examination-in-chief that on 11.1.1978 at about 6.00 p.m., the informant/victim, Vidya was brought before her for being medically examined. She did not find any external injury on her body. Hymen was found torn, old and healed. No spermatozoa was found. On the basis of x-ray of elbow joint, Epiphysis was found fused in metaphysic and in wrist joint, Epiphysis with Metaphysic was not found fused completely and it has been expressed that no opinion could be given with regard to rape as she was used to sexual intercourse. X-ray had shown her age above 16 years but below 18 years. She has proved her medical examination report as Exhibit Ka-4. 16. P.W.3 has been cross-examined at length and nothing such has come in her cross-examination which would create any doubt about truthfulness of her testimony and she has emphatically opined in cross-examination that the age of the victim/informant was 16-18 years only and she could not be 19 years' old, therefore, this witness has also clinchingly given evidence to the effect that victim was less than 18 years on the date of occurrence, therefore she could not be taken to be a consenting party for having been allowed to have sexual intercourse. 17. P.W.5, S.I. Ratan Lal who has conducted the investigation has stated in examination-in-chief that on 10.01.1978 when he was posted at P.S. Jaitpur, he was assigned investigation of this case. On 11.01.1978, he has taken statement of informant/victim (Vidya) and on 19.01.1978 at her instance, he had gone to village, Ram Nagaria and investigated the place of occurrence from where the victim was said to have been taken away and prepared the site-plan of the said place which is Exhibit Ka-5. In the site-plan by letter 'A' is shown the place where the victim had gone for easing herself out, thereafter she had also shown him the place where rape was committed upon her and he prepared the site-plan of the same which is Exhibit Ka-6 in which by letter 'A' is shown the place where the said occurrence happened in the field of arhar of Raghuraj Singh. On the same day, he came to village of accused, Bhola and at the instance of victim, he prepared the site-plan of the place where she was kept by the accused which is Exhibit Ka-7, thereafter he went to P.S. Badhpura and interrogated S.I., Vasdev Singh of police chauki, Oodi Mod, P.S. Badhpura, District Etawah and recorded his statement and statement of other witnesses i.e. Ram Autar Singh and Gambhir Singh. On 6.02.1978, after having concluded the investigation, he has submitted the charge-sheet, Exhibit Ka-8. 18. In cross-examination, this witness has stated that the place from where the victim was abducted was about one and half furlong away from Ram Nagaria. The distance from Nagaria to the field of arhar in sookhatal would be around 5-6 kms. From village, Mauran to sookhatal, the distance was about two and half kms. Mauran to Kori Kuan, the distance was about 1 1/2 to 2 kms. The distance from Kori Kuan to Oodi Mod, he does not recollect. In the field of pulses (arhar), the crop would be of a height of a man. He had found the crop of pulses in bent condition but has not shown them that way. In village, Mauran, he did not meet Natthu Singh, Baldev and Sukhram but had interrogated others which included Naresh Singh and Babu Singh but they were not made witnesses in this case. Further he has stated that on the next day of occurrence, he had taken the victim to the field of pulses and village of Bhola. The victim, Vidya had not disclosed to him that in the bus, the accused had shown her knife nor had she told him about knife being recovered from them. During investigation, it had not come in his knowledge that from both the accused, knife was recovered. At Jaitpur police station, the victim, Vidya has not lodged any report. From P.S., Badhpura to P.S. Jaitpur, victim had come in the night at about 10.00 p.m. on 10.01.1978, entry regarding which is made in G.D. No. 41. Further he has stated that he had not interrogated any of the shop-keepers who were located near Oodi Mod. Gambhir Singh and Ram Autar told him that they were in the bus. From P.S., Badhpura to P.S. Jaitpur, victim had come in the night at about 10.00 p.m. on 10.01.1978, entry regarding which is made in G.D. No. 41. Further he has stated that he had not interrogated any of the shop-keepers who were located near Oodi Mod. Gambhir Singh and Ram Autar told him that they were in the bus. Bus number was not mentioned in the report of P.S. Badhpura nor the same was mentioned in the statement of witness under Section 161 Cr.P.C. The name of the bus driver was Munna Lal and that of conductor was Raja Ram. He has recorded statement of both of them and has denied that he has submitted false charge-sheet against the appellants. 19. From the statement of this witness narrated above, nothing such has come to light which could cast any doubt in respect of truthfulness of his statement in examination-in-chief and this witness has clearly proved that a fair investigation was made by him and has prepared not only one but three site-plans of each place i.e. place from where the victim was said to have been taken away by the accused appellant and the place where rape was committed upon her and the place where she was kept for few hours in the house of co-accused appellant. The only thing that would create doubt in the mind was about the fact that the knife which was stated by the victim to have been used by the accused appellants to threaten her and by showing the same, she was said to have been raped, the same fact was not stated by the victim to the I.O. that such a knife was used by the accused persons and in this regard, there is contradiction in the statement of victim because in her statement before court, she has stated that she had revealed it to the I.O. that such a knife was used by the accused persons at the point of which she was raped but I do not find such contradiction to be minor contradiction with regard to the happening of occurrence with the victim. 20. 20. One Bharat Kishore Singh has been examined as P.W. 6 who was Constable at P.S., Badhpura on 10.01.1978 and has stated in examination-in-chief that on the same day, in the evening at about 6:30 p.m., he along with other constable, Hari Kishan had taken chick, G.D., recovery-memo and the sample-seal etc. to the P.S. Jaitpur for which he had departed from there at about 22:00 hours and these articles were deposited at P.S. Jaitpur. He is a formal witness, therefore, his statement does not require to be analysed in depth. 21. Constable Udal Singh has been examined as P.W. 7 who has stated that on 10.01.1978, he was posted at P.S., Jaitpur and on the same day in the night at about 10:00 P.M., Constable Bharat Kishore Singh (P.W. 6) and Hari Kishore had come to his P.S. along with victim and two sealed bundle, copy of F.I.R. and G.D. etc., entry regarding which was made at G.D. no. 41 dated 10.01.1978 by him which is Exhibit Ka-9. This witness is also a formal witness and his testimony also does not require to be discussed at length. 22. Before analysing said evidence and to see whether offence under the above-mentioned sections are made out or not, it would be appropriate to refer here necessary ingredients of those offences. 23. For offence under Section 363 I.P.C., following ingredients are required to be fulfilled:- “(i) That the accused did: (a) Forceful compulsion or inducement by deceitful means; (b) The object of such compulsion or inducement must be the going of a person from any place; (ii) That such kidnapping of any person was done from India or from the lawful guardianship.” 24. As regards offence under Section 366 I.P.C., following ingredients are required to be fulfilled: “(i) Kidnapping or abducting of any woman; (ii) Such kidnapping or abducting must be- (i) 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 (ii) 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; or (iii) by means of criminal intimidation or otherwise by inducing any woman to go from any place with intent that she may be, or knowing that she will be, forced or seduced to illicit intercourse. It is immaterial whether the woman kidnapped is a married woman or not.” 25. Now in the light of above ingredients, I find in this case according to the prosecution version that the victim (P.W.4) was beguiled away by the accused appellant, Kalletariya along with co-accused (Bhola) on the date of occurrence at about 8:30 p.m. when she had gone for easing herself out by telling her that she would be provided good clothes and ornaments and that she would be married to accused appellant, Kalletariya. When she proceeded little ahead of Kori Kuan towards sookhatal, these accused had shown her knife and by giving her threat to kill, they had forcibly taken her to the field of pulses where she was raped and, thereafter from the Kori Kuan, she was taken to the village of Bhola where she was kept for two to three hours and, thereafter both the appellants had taken her to Etawah by motor. At about 5:00 p.m. when the bus stopped at Oodi Mod, the victim cried loudly to call the policemen who were standing there and told them the entire occurrence whereafter both the appellants were arrested by the policemen and were brought to the P.S. The statement of the victim in support of the prosecution version is given in examination-in-chief and in cross-examination as well, she has stood her ground that she was taken away being beguiled by these appellants and subsequently was raped at the point of knife. The Doctor (P.W. 3) has stated that she did not find any injuries upon the body of the victim and could not express any definite opinion of rape because the victim was used to sexual intercourse but she did say that the age of the victim was between 16-18 years and certainly not 19 years. 26. The trial court has not found the case of rape proved because it has written its finding that if two men would commit rape upon the victim, certainly some injuries would have been caused to the victim and the place where the said incident is said to have taken place, crop etc. would have been found crushed under the weight but such a case was not found by the trial court because of which it has given benefit of doubt to the appellants with respect to the offence of rape being committed by the appellants. 27. The said finding need not to be disturbed because the conviction is made under Section 363 and 366 I.P.C. only, hence I uphold the said finding of the trial court for the reasons given by it. 28. As regards the offence under Sections 363, 366 I.P.C. is concerned, it is apparent that the ingredients mentioned above of these two sections appear to be clearly made out on the basis of testimony of the victim (P.W.4) as well as of P.W. 1 and the corroboration of the same by the testimonies of P.W. 3 (doctor) and I.O. (P.W.5). The trial court has also written a finding that because the victim was less than 18 years, she was not competent to give consent to have sexual intercourse with her and her age was found to be proved by the statement of the P.W. 3 who had examined her medically and on the basis of x-ray report, P.W. 2 had opined that she was less than 18 years, therefore, it was held by the trial court that she could not give consent for being taken away by the accused appellants in order to be provided jewellery, clothes and for the purposes of marrying one of the appellants from out of the guardianship of her father where she was residing after her marriage away from her husband. It is also mentioned by the trial court that the evidence which has been adduced from the side of defence of D.W.1, Puttu Singh was not trust-worthy and the same has been discarded. This witness has stated that he was also travelling by the same bus in which the victim was travelling with one man and in the said bus, the said man had a quarrel with the accused appellant, Kallectaria and, thereafter the police had forcibly de-boarded them from the said bus along with victim. 29. In cross-examination, this witness could not give any detail as to what led to the dispute between them and has admitted that it was accused appellant, Kallectaria who had brought him to court for deposition. He did not know the said accused from before and about the fact that who was that man who was accompanying the victim, he could not throw light upon it. The defence version is that in the said bus, husband of the victim i.e. Karua was also travelling and with him, the accused had picked up quarrel. The victim was sitting in the said bus but he did not know where the Karua was going with Vidya. The said defence as well as the effort of the defence side to prove their version by getting examined, D.W. 1, Puttu Singh does not appear to be believable because it is a case of the prosecution that the victim was living away from her husband under the protection/guardianship of her father. There was no occasion for the husband of the victim accompanying her in bus and the accused appellants picking up a row with him. It appears to be story concocted by the defence side. The trial court has rightly held the statement of D.W.1 to be untrustworthy and this Court concurs with the opinion of trial court in this regard. 30. It appears to be story concocted by the defence side. The trial court has rightly held the statement of D.W.1 to be untrustworthy and this Court concurs with the opinion of trial court in this regard. 30. It is apparent from the testimony of the above cited witnesses that the version of P.W. 4 i.e. victim gets support from the version of P.W. 1 that he had found the P.W.4 crying aloud at Oodi Mod, hearing which he had approached the victim and when she narrated as to how she was forcibly taken away by the appellants, the accused appellants were arrested and taken to P.S. and thereafter, F.I.R. was lodged, therefore, I find that the prosecution side has been able to prove its case to the extent that the accused appellant along with co-accused had taken the victim, Vidya out of the guardianship of her father and she being less than 18 years was not competent to even give consent to leave her father's house without permission of her father and the intention certainly was to commit sexual assault upon her and, therefore, ingredients of both the sections i.e. Sections 363 and 366 I.P.C. appeared to be satisfied on the basis of evidence and trial court does not appear to have committed any error in holding the accused appellant guilty under Sections 363 and 366 I.P.C. 31. Section 4 of Probation of Offenders Act, 1958 says that if any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the Court may direct, and in the meantime to keep the peace and be of good behaviour. 32. 32. Looking to the fact that on the date of recording of statement of accused under Section 313 Cr.P.C. i.e. on 24.02.1982, the accused appellant was 22 years' old, therefore, by now, he must be more than 59 years old person which by any standard would be considered to be old at this distant point of time and since it is being found that co-accused had already died, it is appearing to be very inhuman to send the appellant, Kalletariya to jail to serve out the sentence awarded by the trial court of three years particularly looking to the fact that he was not found to have committed offence of rape and only offence which has been found proved is that of Section 363 and 366 I.P.C. which is punishable up to ten years only and with fine. 33. In view of the above, the judgement of the trial court is upheld and the sentence awarded to the appellant is maintained, however, looking to the special circumstance narrated above, I find that this would be suitable case in which provision of Probation of Offenders Act, 1958 should be invoked and, hence instead of sending the accused appellant to jail, it is directed that he shall be released on probation for a period of three years on his furnishing two sureties and personal bond of same amount to the satisfaction of the trial court with the direction that he shall appear before the court as and when he is called upon to receive sentence. During this period, he shall maintain peace and shall be of good behaviour. 34. The appeal is, accordingly dismissed. 35. Appellant is on bail. He shall appear before the trial court at the earliest within a period of one month and shall fill up bonds as directed, in case of default, he shall serve out the remaining sentence. 36. Copy of this judgement be transmitted back to the trial court along with lower court record at the earliest by office for strict compliance of the judgement forthwith. 37. Learned Amicus Curiae has assisted this Court for deciding this Appeal, hence for the said effort on her part, it is deemed proper that she should be paid Rs. 5,000/- as remuneration in accordance with rules.