JUDGMENT : PRADEEP KUMAR SRIVASTAVA, J. 1. I have already heard the arguments advanced by Mr. Saibal Mitra with Mr. Akshay Kumar Mahato, learned counsels appearing for the appellant as well as Mr. Vineet Kumar Vashistha, learned Spl. P.P. appearing for the State. 2. The present appeal is directed against the judgment and order of conviction and sentence dated 30.01.2006 and 31.01.2006 passed by learned Sessions Judge, Seraikella- Kharsawan in S.T. No.136 of 2004 whereby and whereunder, the sole appellant has been held guilty for the offences under Sections 366A and 376 of INDIAN PENAL CODE and sentenced to undergo R.I. for 7 years with fine of Rs.2,000/- for the offence punishable under section 366A of the I.P.C. and R.I. for 8 years with fine of Rs.3,000/- for the offence punishable under Section 376 of I.P.C. with default stipulation. Both the sentences were directed to run concurrently. FACTUAL MATRIX 3. Factual matrix giving rise to this appeal as per the written report dated 23.10.2004, is that the prosecutrix aged about 15 years, had gone to the matrimonial home of her elder sister at Village Kadla and was staying there since last one month owing to her illness and for treatment. The prosecutrix was acquainted with the present appellant Jai Prakash Singh prior to the occurrence because he has also his relation adjacent to the house of her elder sister and used to frequently visit there and the accused appellant used to work in the capacity of Munsi at Sikli in a brick kiln. It is further alleged that on 16.10.2004 at about 09:30 A.M. (Saturday), while the prosecutrix was alone in the house, the accused came to the sister’s house of the prosecutrix and told that her mother is ill and asked her to accompany him on motorcycle to visit her mother. The prosecutrix relied upon the version of accused and boarded on the motorcycle but instead of taking her to, at her village, the accused was taking her towards another road, then she asked him as to where he was going with her ? Upon this, he replied that her mother has been admitted in Tata Hospital at Jamshedpur and he is going there. Upon this, he replied that her mother has been admitted in Tata Hospital at Jamshedpur and he is going there. It is further alleged that instead of taking her to Tata Hospital at Jamshedpur, the accused brought her to unknown village and kept her confined in a house and extended her threat of life and forcibly committed rape on her continuously for six days. When prosecutrix protested then she was slapped and threatened of dire consequences and also assured to solemnize marriage with her. It is further alleged that on 23.10.2004 at about 07:00 A.M., father, sister and brother- in-law of the prosecutrix along with other co-villagers arrived at the place where she was confined by the accused and they caught hold of the accused who disclosed his name as Jai Prakash Singh son of Charitra Singh resident of Village Sikli, P.S. Chandil, District Seraikella at Kharsawan. The prosecutrix and the accused were brought to police station where she lodged written report which was scribed by one Balram Gope (P.W. 6) and after reading over the contents, she put her signature. On the basis of written report of the prosecutrix, the F.I.R. being Nimdih P.S. Case No.66 of 2004 dated 23.10.2004 was registered for the offences under Sections 366A and 376 of I.P.C. 4. After completion of investigation, charge-sheet was submitted against the accused. After taking cognizance of the aforesaid offences, the case was committed to the court of Sessions where S.T. No.136 of 2004 was registered. The accused appellant denied from the charges levelled against him and claimed to be tried. 5. After conclusion of trial, the impugned judgment and order has been passed, which has been assailed in this appeal. 6. In the course of trial, altogether 15 witnesses were examined by the prosecution including the prosecutrix as P.W.2. 7. Apart from oral testimony of witnesses, following documentary evidence were also adduced by the prosecution: Exhibit Number Description Exhibit 1 School admit card Exhibit 2 Written report Exhibit 2/1 Victim signature on written report Exhibit 3 Medical report of the victim Exhibit 4 to 4/2 Three X-ray plates Exhibit 5 Formal F.I.R. Exhibit 6 Endorsement on fardbeyan for registration of case 8. The case of defence is denial from occurrence and false implication with a view to extort money from him as pleaded by way of suggestion to witnesses. The case of defence is denial from occurrence and false implication with a view to extort money from him as pleaded by way of suggestion to witnesses. No oral or documentary evidence has been adduced by the defence. 9. The learned Trial Court after evaluation of testimony of witnesses and perusal of other materials available on record hold the appellant guilty for the offences under Sections 366A and 376 of the I.P.C. and sentenced him as stated above. 10. Learned counsel for the appellant has contended that the prosecutrix has claimed to have been ravished by the appellant for six consecutive days and she was wearing the same clothes but her clothes were not seized and sent to Forensic Science Laboratory for clinical examination to detect any spots of semen and other materials. It is further submitted that the medical report of the victim girl categorically shows that there was no sign of commission of rape with her and her age was below 18 which varies two years ± either side. The alleged admit card of the victim girl produced in evidence (Ext.1) has also not been proved by any competent witness and cannot be relied upon. It is further submitted that the learned Trial Court has failed to consider that victim was missing from the house of her sister since 16.10.2004 but F.I.R. was not promptly lodged rather after her recovery, the F.I.R. has been lodged without explaining any cogent reasons. It is further submitted that the learned Trial Court has observed that it may be a case of consent but convicted the accused on the sole ground of her age being 15 years. There was no reason to hold the age of the victim girl to be 15 years in absence of any cogent and reliable evidence. The conviction of appellant for the offence under Section 366A of the I.P.C. is absolutely illegal in absence of fulfilment of ingredient thereof against the appellant. Therefore, the learned Trial Court has miserably failed to properly appreciate the evidence available on record and hold the appellant guilty only on the basis of conjecture and surmises as regards the age of the victim. Hence, arrived at wrong conclusion about the guilt of the appellant which is fit to be set aside allowing this appeal. Therefore, the learned Trial Court has miserably failed to properly appreciate the evidence available on record and hold the appellant guilty only on the basis of conjecture and surmises as regards the age of the victim. Hence, arrived at wrong conclusion about the guilt of the appellant which is fit to be set aside allowing this appeal. In the alternative, it is submitted that during the course of trial, the appellant remained in judicial custody for 4 years and 3 months and at the time of hearing of this appeal due to constant absence of the appellant and his counsel to argue the appeal, the suspension of sentence order was cancelled vide order dated 06.01.2025, consequently, the appellant was arrested and is in judicial custody at present since 31.01.2025 and has sufficiently been punished for his guilt. Therefore, his sentence may be reduced to the imprisonment already undergone. 11. On the other hand, learned Special Public Prosecutor appearing for the State has submitted that the learned trial court has properly appreciated the prosecution evidence and there is no question of consent of the victim since she was below 18 years of age. As such, the argument of learned counsel for the appellant regarding age of victim is not tenable at all. The school certificate of the victim shows that on the date of occurrence, she was above 14 but below 15 which has also been verified by her medical examination report. Even if, it may be assumed that she was 18 plus, there is no iota of evidence to infer her consent for sexual intercourse. The prosecution has conclusively proved that the appellant has enticed her pretending illness of her mother and taken away the prosecutrix-cum-victim and continuously committed rape on her for six days in spite of her protest and objection. The mere non-seizure of her wearing clothes as well as observation made in the medical examination report about no sign of rape cannot be a basis for exonerating the appellant from such a serious charge. The evidence of victim is wholly reliable. The delay in lodging F.I.R. is also not substantial in this case to disbelieve the prosecution case. Therefore, conviction and sentence of the appellant suffers from no illegality or infirmity calling for any interference in this appeal. The evidence of victim is wholly reliable. The delay in lodging F.I.R. is also not substantial in this case to disbelieve the prosecution case. Therefore, conviction and sentence of the appellant suffers from no illegality or infirmity calling for any interference in this appeal. So far quantum of sentence is concerned, the appellant has been awarded 8 years of rigorous imprisonment along with fine of Rs.3,000/- which is adequate in the facts and circumstances of the case and requires no interference for such a heinous offence. Therefore, this appeal is devoid of merit and fit to be dismissed. 12. For better appreciation of respective arguments raised on behalf of learned counsels, it is pertinent here to apprise with the evidence adduced by respective parties during the course of trial. 13. Altogether 15 witnesses were examined by prosecution. The most important witness of the case is P.W.2 prosecutrix-cum-victim. According to her evidence, since one month prior to date of occurrence, she was residing at her elder sister matrimonial home due to her illness in Village Kadla Gaon. On the date and time of occurrence, she was alone in the house then appellant Jai Prakash Singh came on a motorcycle and on pretext of illness of her mother accompanied her to Village Lupungdih. It is further stated that she was not brought to Village Lupungdih to visit her mother but accused further told her that he is going to Tata Hospital where her mother was admitted but he did not go to Tata rather brought to Village Tamolia and there kept confined her in a room for six days and continuously committed rape forcibly with her on all those days. She has further deposed that on the sixth day, her brother, father and other villagers along with her brother-in-law came there and caught hold of the accused and she was brought out to Police Station at Nimdih where she lodged the F.I.R. marked Ext.2 and her signature is Ext.2/1. In her cross-examination also, she has remained intact. Accused was already married and he used to visit at his sister’s house then she was acquainted with him. In her cross-examination also, she has remained intact. Accused was already married and he used to visit at his sister’s house then she was acquainted with him. She has also reiterated that the accused visited her on the date of occurrence, while she was alone and advised to go with him to see her ailing mother but she passed her Village Lupungdih at about 12:00 p.m. then she asked to stop the vehicle but the accused told him that he is going to Jamshedpur because her mother is admitted in Tata Hospital so that she could not raise any alarm. She has also reiterated that due to threatening of life and scolding her, she could not come out of the house where she was confined. There is nothing else in her cross-examination to disbelieve or discredit her testimony. P.W.1 Gurubari Gope is elder sister of victim. According to her evidence, on the date of occurrence, victim girl was residing with her at her matrimonial home and while she and her husband had gone to forest for collecting woods and returned in the noon then victim girl was not found. She has also proved the admit card of the victim of Navodaya Vidyalaya, Lupungdih showing her date of birth to be 12-06-1990. She has further deposed that upon search of the victim, she came to know that present appellant has taken her on motorcycle ultimately came to know that the accused has confined the victim girl at Village Tamolia where the victim girl was found confined in a house of Jai Prakash Singh both were apprehended and brought to Nimdih Police Station. She also came to know from the victim girl that the accused has committed rape with her on the above all six days confining in the room. This witness has also been cross-examined by defence but no material has been elicited to discredit her above testimony. P.W.3 Dev Charan Gope is brother-in-law of the victim girl. She also came to know from the victim girl that the accused has committed rape with her on the above all six days confining in the room. This witness has also been cross-examined by defence but no material has been elicited to discredit her above testimony. P.W.3 Dev Charan Gope is brother-in-law of the victim girl. He has also corroborated the prosecution case to the extent that while he and his wife has gone to collect the wood from jungle and the victim girl was alone in the house, when they returned to home they did not found the victim girl and after search, the victim girl was found confined in a house at Village Tamolia by the accused appellant who got apprehended and thereafter, both were sent to Nimdih Police Station where the victim girl has stated that the appellant had raped her after confining her into the said house. P.W.4 Jitu Gope is the father of the prosecutrix, has disclosed the age of the victim girl to be 15 to 16 years. She was studying at Lupungdih School. He has further deposed that in the month of Ashwin, on Saturday at about 09:00 a.m., she was residing with her elder sister at her matrimonial home in the absence of her sister and brother-in-law, the accused J.P. Singh kidnapped her on motorcycle. During search for six days, found that the accused appellant had taken her to his Village Tamolia. Thereafter, he reached the said village and apprehended the accused J.P. Singh and found that the victim girl was confined in a room. After recovery, she disclosed that accused has committed rape with her then both of them were sent to Nimdih Police Station. In his cross-examination, nothing elicited to discredit his testimony. P.W.5 Dr. Manorma Siddhesh is the medical officer who has examined the prosecutrix and found her age to be less than 18 years. She has further deposed that she found evidence of sexual intercourse with the prosecutrix but she did not find any living or dead spermatozoa inside her vagina. P.W.6 Balram Gope is a hearsay witness who came to know from one Devcharan that on 16.10.2004, J.P. Singh has kidnapped the victim girl who was residing at her sister’s house. He was also searching the victim girl. P.W.6 Balram Gope is a hearsay witness who came to know from one Devcharan that on 16.10.2004, J.P. Singh has kidnapped the victim girl who was residing at her sister’s house. He was also searching the victim girl. Then on 22.10.2004, one Tapan Gope told that J.P. Singh has kept the victim girl at Village Tamolia from where the victim and accused were apprehended and produced before the police. He has ascribed the written report on disclosure by the victim girl which was read over and explained to her and already marked Ext.2. P.W.7 Rajendra Gope is the brother of victim girl. On 16.10.2004 his brother-in-law came to his Village Lupungdih and told that Jai Prakash Singh had kidnapped the victim girl. In course of search after six days, he came to know that victim has been kept by the accused at Village Tamolia. Thereafter, he went there along with other persons and found the prosecutrix confined in a house. They caught hold of the accused and also recovered the prosecutrix and brought them to Nimdih Police Station. Nothing in his cross-examination to disbelieve his testimony. P.W.8 Ram Charan Gope is the elder brother of brother-in-law of the victim girl. He has also deposed that victim girl was residing at her elder sister’s house. He is elder brother of her brother-in-law Dev Charan Gope. On the date of occurrence, victim was alone in the house his younger brother and his wife had gone to jungle. He has further stated that he had seen that Jai Prakash Singh was taking her (the victim) on a motorcycle and later on had heard that he has kept confined the victim in his house. There is nothing else in his cross-examination to disbelieve or discard his testimony. P.W.9 Shiv Charan Gope is the brother of Dev Charan Gope, has also stated that he is neighbor of Dev Charan Gope in whose house the victim girl was residing on the date of occurrence. He saw that on a motorcycle, the victim girl was taken away by Jai Prakash Singh. When his brother Dev Charan Gope and his wife returned then he disclosed that Jai Prakash Singh has taken away the victim girl. There is nothing else in his cross-examination to rebut the above testimony. He saw that on a motorcycle, the victim girl was taken away by Jai Prakash Singh. When his brother Dev Charan Gope and his wife returned then he disclosed that Jai Prakash Singh has taken away the victim girl. There is nothing else in his cross-examination to rebut the above testimony. P.W.10 Manju Gope is a hearsay witness from from Shiv Charan Gope (P.W.9) that Jai Prakash Singh has taken away the victim girl on motorcycle. It is also disclosed that appellant was working as a Munsi in a brick kiln. P.W.11 Dhananjay Singh is the Investigating Officer of this case. According to his evidence on 23.10.2004, he was Officer-In-Charge of Nimdih Police Station. On that day at about 15:20, the prosecutrix and her family members came to police station and a written report was lodged by the prosecutrix. On the basis of which, Nimdih Police Station Case No.66/2004 was registered for the offences under Sections 366A and 376 of the I.P.C. He has proved formal F.I.R. as Ext.5 and endorsement on written report as Ext.6. He has further deposed that the accused Jai Prakash Singh was also produced by the family members of the prosecutrix and he was taken into formal custody. He recorded the restatement of victim girl and other witnesses of this case namely Guruwari Gope, Deocharan Gope and Jitu Gope etc. He also interrogated with the accused but he did not pleaded his guilt. He also went to Village Lupungdih and interrogated with Rajendra Gope and Balram Gope. He visited the first place of occurrence on 25.10.2004 at Village Kadla which is katcha house of Deocharan Gope from this house the victim was kidnapped by the accused on motorcycle. He visited the second place of occurrence on 26.10.2004 which is Village Tamolia in the house of Md. Samsuddin having several rooms. In one room, accused was residing. He also recorded evidence of Md. Samsuddin, Manoj Singh, Sukurmuni, Chhotu Kalindi etc. and sent the victim girl for medical examination and also received the medical examination report of the victim. After conclusion of investigation, he submitted charge-sheet against the accused for the aforesaid offences. In his cross-examination, he has admitted that during the course of investigation, the clothe of victim girl was not seized by him. He also admits that after recovery of the victim girl, case was lodged. After conclusion of investigation, he submitted charge-sheet against the accused for the aforesaid offences. In his cross-examination, he has admitted that during the course of investigation, the clothe of victim girl was not seized by him. He also admits that after recovery of the victim girl, case was lodged. He has also stated that the witness Sukurmuni of Village Tamolia told that victim girl along with the accused were apprehended from Village Tamolia. Other local villagers also corroborated the above story. He has also prepared the sketch map of the second place of occurrence which is mentioned at para 41 of the case diary. There is nothing else in his cross-examination to discredit his testimony. P.W.12 Md. Samsuddin has been declared hostile by the prosecution. Although, he has admitted that appellant J.P. Singh was working in his brick kiln as a Munsi and also admitted that the accused was residing at Village Tamolia. The accused J.P. Singh was a married person having children. He has also heard that the accused had kept a girl in his rented room. This witness has been declared hostile only on the point that in his statement under Section 161 of the Cr.P.C. He has disclosed that the accused informed to this witness that he has married with the prosecutrix and the accused was questioned as to how he has kept this girl in spite of his marriage and with another lady. Thereafter, he came to know that accused has kidnapped the victim girl. P.W.13 Sukurmuni is wife of truck driver in the brick kiln of Md. Samsuddin (P.W.12). She has deposed that accused J.P. Singh was working as a Munsi in the brick kiln of Md. Samsuddin. He is married and having children. Some days ago, he kidnapped a girl and was residing with her, when this witness asked him about the identity of the girl then he disclosed that she is his wife. Thereafter, the girl was recovered from his house by her relatives. She has further stated that she was interrogated by Police and she disclosed all the facts to the Police. P.W.14 Chhotu Kalindi is cleaner of truck of Md. Samsuddin (P.W.12). He has also disclosed that J.P. Singh was working as a Munsi in the brick kiln of his employer Md. Samsuddin. She has further stated that she was interrogated by Police and she disclosed all the facts to the Police. P.W.14 Chhotu Kalindi is cleaner of truck of Md. Samsuddin (P.W.12). He has also disclosed that J.P. Singh was working as a Munsi in the brick kiln of his employer Md. Samsuddin. He has further deposed that the accused kidnapped the girl and was residing with her in the rented house disclosing her as his wife. Thereafter, he was apprehended by villagers and family members of the victim girl and brought to police station. This witness has also been declared hostile. This witness has also been declared hostile. He has denied any statement recorded by Police under Section 161 of the Cr.P.C. Hence, he was declared hostile. But his aforesaid testimony has not been remitted in his cross-examination. P.W.15 Manoj Singh has been tendered by the prosecution and spread no knowledge about the occurrence. 14. So far charge under section 366A is concerned, relevant provision is extracted hereunder: 366A. 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. From bare perusal of above provision to attract Section 366A, essential ingredients are (1) that the accused induced a girl; (2) that the person induced was a girl under the age of eighteen years; (3) that the accused has induced her with intent that she may be or knowing that it is likely that she will be forced or seduced to illicit intercourse; (4) such intercourse must be with a person other than the accused; (5) that the inducement caused the girl to go from any place or to do any act. 15. 15. In the instant case, so far conviction of the appellant for the offence under Section 366A of the I.P.C. is concerned in the factual aspects of the case as discussed above, the ingredients of offence under Section 366A of the I.P.C. is absolutely lacking in this case in as much as there was no procuration of minor girl with intention that she would be forced and seduced to illicit intercourse with some other person. In the instant case, the accused himself is alleged to have induced the minor girl and taken her away with intention to establish sexual intercourse with her. 16. The court is conscious to deal with the cumulative effect of the materials facts proved against the appellant in order to ascertain his criminality. Here in this case, the minor girl under the age of 18 years has been induced/enticed to go away from the custody of lawful guardian. The involvement of the appellant is categorically proved that he has come on a motorcycle and on pretext of illness of her mother, accompanied her (the victim) to Village Lupungdih but she was not brought to Village Lupungdih to visit her mother and told her that he is going to Tata Hospital where her mother was admitted but he did not go to Tata rather brought to Village Tamolia and kept her confined there in a room for six days and continuously committed rape forcibly with her on all those days. Therefore, the offence punishable under Section 363 of the IPC is well proved against the appellant. In view of the above discussion and reasons, the conviction and sentence of the appellant for the offence under Section 366A of the IPC is set aside and he is held guilty for the offence punishable under Section 363 of the IPC. 17. So far as the offence of rape punishable under Section 376 of the I.P.C. is concerned, in this regard, evidence of victim is very important. P.W.2 (prosecutrix-cum-victim) specifically stated in her examination-in-chief that she was taken to unknown village and confined her and appellant had sexual intercourse with her against her will. There is no reason to disbelieve the testimony of prosecutrix-cum-victim girl. In reply to the suggestion that the appellant did not have sexual intercourse against her will, the victim girl has categorically denied the same. There is no reason to disbelieve the testimony of prosecutrix-cum-victim girl. In reply to the suggestion that the appellant did not have sexual intercourse against her will, the victim girl has categorically denied the same. The admitted case is that the appellant had sexual intercourse with the prosecutrix-cum-victim girl for which, considering her age, conviction under Section 376 of the I.P.C. is hereby upheld. 18. So far as alternative plea of the appellant regarding reduction of sentence is concerned, the factual aspects of the case as brought on record clearly goes to reveal that the victim is a minor girl and for such type of heinous offence, the appellant has been convicted to only minimum sentence. No appeal has been preferred by prosecution for enhancement of sentence. Therefore, there is no mitigating circumstance to take leniency in the matter of sentence in favour of the appellant. 19. In the aforesaid facts and circumstances, the conviction of the appellant for the offence under Section 366A of the I.P.C. is set aside and he is held guilty for the offence under Section 363 of the I.P.C. but his conviction for the offence under Section 376 of the I.P.C. is maintained and upheld. So far as the quantum of sentence is concerned, no interference is warranted in view of gravity of offence committed by the appellant. However, no separate sentence for offence under Section 363 of the I.P.C. is being awarded to appellant. 20. Accordingly, this appeal is dismissed. 21. Pending I.A(s), if any, is also dismissed accordingly. 22. Let a copy of this judgment along with Trial Court Record be sent back to the trial court for information and needful.