JUDGMENT : MOHAMMAD NAWAZ, J. The State as well as the accused have filed these appeals challenging the judgment and order dated 08.04.2014 passed in S.C.No.10/2012, by the Court of Principal Sessions Judge at Raichur. 2. The learned Sessions Judge, by impugned judgment was pleased to acquit accused Nos.1 to 4 of the offence punishable under Section 366-A read with Section 34 of IPC , accused No.1 of the offence punishable under Section 376 of IPC and accused Nos.1, 3 and 4 of the offence punishable under Section 506 read with Section 34 of IPC . 3. The learned Sessions Judge convicted accused Nos.1 to 4 for the offence punishable under Section 363 read with Section 34 of IPC and accused No.2 for the offence punishable under Section 506(2) of IPC . 4. Heard the learned counsel for the accused and the learned Additional SPP for the State and perused the evidence and materials on record. 5. It is the case of prosecution that, on 01.01.2011 at about 11 a.m., in land bearing Sy No.312/A of Maladkal Village, accused No.1 forcibly took the victim (PW1) to have illicit intercourse with her and accused Nos.2 to 4 with a common intention, helped accused No.1 and all the accused took her in a Tata ACE vehicle bearing Registration No. KA 36 A 726 to Devadurga by threatening her with dire consequences if she raised alarm and then on 02.11.2011 at about 1 p.m., took her to Naregaon in Puna town and confined her in a temporary shed bearing No.102, wherein, accused No.1 committed rape on her and thereby committed the charged offences. 6. Charges were framed against accused Nos.1 to 4 for the offence under Section 366-A read with Section 34 of HC-KAR IPC , Accused Nos.2 to 4 under Section 506 read with Section 34 of IPC and against accused No.1 for the offence under Section 376 of IPC . 7. To establish the charges leveled, the prosecution examined PW1 to PW21 and got marked Exs.P1 to P25. On behalf of the defence, Ex.D1 to D5 were marked i.e., portion of the further statement of PW1 and statement of PW8. 8. 7. To establish the charges leveled, the prosecution examined PW1 to PW21 and got marked Exs.P1 to P25. On behalf of the defence, Ex.D1 to D5 were marked i.e., portion of the further statement of PW1 and statement of PW8. 8. The learned Sessions Judge, on the basis of the evidence and materials on record, came to the conclusion that, the charges leveled against accused Nos.1 to 4 under Section 366A read with 34 of IPC and against accused No.1 under Section 376 of IPC and against accused No.1, 3 and 4 under Section 506 read with 34 of IPC are not proved. However, held accused Nos.1 to 4 guilty for the offence punishable under Section 363 read with Section 34 of IPC and accused No.2 for the offence punishable under Section 506 of IPC . 9. The main contention raised by the learned counsel for the accused is that the victim was not a minor as on the date of commission of the offence and there are different versions given by the prosecution relating to her age and if her HC-KAR evidence is appreciated, it can be clearly seen that there was consent on her behalf and she willingly accompanied the accused and therefore, no offence as alleged by the prosecution is made out. It is also contended that the Trial Court has given valid reasons to come to a conclusion that the offences under Section 376 of IPC against accused No.1 and Section 366-A of IPC against accused Nos.1 to 4 are not proved, however, erred in convicting for the offence punishable under Section 363 and 506 of IPC . He further contended that the evidence of the victim examined as PW1 suffers from serious infirmities, contradictions and improvements and there is an inordinate delay in lodging the complaint and further, the medical evidence do not support the case of the prosecution, therefore, the Trial Court ought to have acquitted the accused by extending the benefits of doubt. 10. Learned Additional SPP has contended that, in the complaint at Ex.P1, PW1 has given reason for lodging the complaint belatedly, as there was a threat to her life and therefore, delay if any in setting the law into motion is not fatal to the prosecution. 10. Learned Additional SPP has contended that, in the complaint at Ex.P1, PW1 has given reason for lodging the complaint belatedly, as there was a threat to her life and therefore, delay if any in setting the law into motion is not fatal to the prosecution. He contended that the prosecution has HC-KAR adduced acceptable evidence to show that the victim was a minor as on the date of commission of the offence, by examining the doctor and marking the documents at Exs.P14, 17 and 22. He contended that the victim in her deposition has categorically stated that, all the accused have forcibly took her to Devadurga and from there to Puna, wherein accused No.1 raped her in a shed and their presence in Puna has been spoken by PW10. He contended that the Trial Court has not assigned proper reasons for acquitting accused Nos.1 to 4 for the offence punishable under Section 366-A of IPC and accused No.1 for the offence punishable under Section 376 of IPC . 11. It is the specific case of the prosecution that accused Nos.1 to 4 kidnapped the victim (PW1), a minor, when she had gone to the land of one Reddy in Maladakal Village for Cooli work, in a Tata ACE vehicle on 01.01.2011 at about 10 a.m., and took her to Devadurga and from there took her to Shahapura in a bus and from there to Puna, wherein accused No.1 detained her in a shed till 06.01.2011, during which time he committed forcible sexual intercourse with her, against her will. 12. The complaint was lodged on 07.04.2011 at about 5 p.m. PW20 – PSI, on receiving the complaint - Ex.P1 from PW1, registered a case and forwarded the FIR - Ex.P24 to the jurisdictional Court. Thereafter, he sent PW1 to District Hospital, Raichur for medical examination. Investigation was taken over by PW21, who recorded the further statement of the victim – PW1 on 08.04.2011. He conducted the spot mahazar, arrested the accused and on completion of the investigation, filed charge sheet. 13. To establish that the victim was a minor as on the date of offence, the prosecution got marked Ex.P11 i.e., the School Certificate issued by PW11–Head Master, Government High School, Kurakunda, wherein both PW1 and accused No.1 studied. He conducted the spot mahazar, arrested the accused and on completion of the investigation, filed charge sheet. 13. To establish that the victim was a minor as on the date of offence, the prosecution got marked Ex.P11 i.e., the School Certificate issued by PW11–Head Master, Government High School, Kurakunda, wherein both PW1 and accused No.1 studied. As per Ex.P11, date of birth of the victim is 01.06.1994 and as per Ex.P12, date of birth of accused No.1 is 04.08.1992. 14. The prosecution has also got examined PW13, PW14, PW17 and PW18, medical officers to prove the age of the victim. As per PW14, working as CMO, RIMS Hospital, Raichur, the victim was brought to the hospital on 08.04.2011 HC-KAR at about 10.15 AM to determine as to whether she was subjected to rape and her clothes contained any traces of semen and to determine her exact age etc. He has opined as per Ex.P17 that, she was aged between 14 and 15 years and stated, as per Gynecologist, there was no evidence suggestive of occurrence of rape. 15. PW17–Radiologist has opined as per Ex.P14 – report that the victim was aged between 14 and 15 years. 16. PW18, working as Dental Tutor has also opined as per Ex.P22 that, the age of the victim was between 14 and 15 years. 17. A careful examination of the evidence of PW14, goes to show that, he issued Ex.P17 mentioning the age of the victim as between 14 and 15 years, based on the report given by the Dental Surgeon, Radiologist and the Gynecologist. Hence, he has not independently examined the victim to ascertain her age, on the other hand, the report was submitted on the basis of reports given by other doctors. 18. PW17–Radiologist has stated that the radiological age of the victim according to the radiographs is between 14 and 15 years and the skeletal age according to the radiographs is between 14 and 15 years. Accordingly, he has given his opinion stating the age of the victim is between 14 and 15 years. Similarly, PW18 – Dentist has stated that, according to the X-ray and based on clinical observation and radiological examination, the age of the victim was between 14 and 15 years. 19. If the above evidence adduced by the prosecution is accepted, then the age of the victim at the relevant time was between 14 and 15 years. Similarly, PW18 – Dentist has stated that, according to the X-ray and based on clinical observation and radiological examination, the age of the victim was between 14 and 15 years. 19. If the above evidence adduced by the prosecution is accepted, then the age of the victim at the relevant time was between 14 and 15 years. However, the prosecution is also relying on the school certificate and the evidence of PW11, who issued Ex.P11 to prove the age of the victim. Since the said certificate is marked at behest of the prosecution, the Court cannot ignore the said document and the evidence of PW11. 20. PW11 has deposed that he worked as in-charge Head Master of the school and as per the records maintained in the school, date of birth of PW1 is 01.06.1994. It is no doubt true that the records on the basis of which the said certificates were issued are not marked in evidence. However, the prosecution itself has examined PW11 and got marked Ex.P11 to prove the age of the victim and if the said document is accepted, the age of the victim was 16 years 7 months as on the date of commission of the offence i.e., as on 01.01.2011. Hence, a serious doubt arises as to the exact age of the victim at the time of incident. 21. PW18 in his cross examination has stated that the estimation of the age was based on dental clinical examination and it is an approximate one, with a margin of error of two years on either side. The third molar was not clinically visible. Third molar becomes clinically visible between 18 to 21 years. He admitted that, some times clinical visibility of third molar depends on facts like nutrition, anatomy, physiology and hormones and in rare cases, third molar may get embedded in the socket itself which is known as impaction of third molar due to increase and prolong use of soft food. 22. Third molar becomes clinically visible between 18 to 21 years. He admitted that, some times clinical visibility of third molar depends on facts like nutrition, anatomy, physiology and hormones and in rare cases, third molar may get embedded in the socket itself which is known as impaction of third molar due to increase and prolong use of soft food. 22. The Trial Court having appreciated the above evidence adduced by the prosecution, observed that, as per the examination by the doctors, victim’s age was estimated as 14 or 15 years, but PW18 has specifically stated that dental clinical examination is an approximate one with a margin of error of two years on either side, which shows that they have estimated the age of the victim as between 14 or 15 years, which is an approximate one with a margin of error of plus or minus of two years and therefore, the reports will not help the prosecution to prove the exact age of the victim at the time of alleged incident. The Trial Court has taken into consideration Ex.P11, marked through PW11, wherein the date of birth of the victim is mentioned as 01.06.1994, which if taken into consideration, the victim was aged more than 16 years as on the date of incident. The finding recorded by the Trial Court to determine the age of the victim that she was aged more than 16 years cannot be found fault with, as the age of the victim estimated by the doctors is contrary to the document got marked by the prosecution itself through PW11. This assumes importance, since the incident took place prior to the amendment of Section 375 of IPC , which was substituted by Act 13 of 2013, prior to which, a man is said to commit rape with or without consent of the victim, when she was under 16 years of age. 23. According to the victim – PW11, when she had gone to the land of one Reddy in Maladkal Village for cooli work, all the accused forcibly took her in a vehicle to Devadurga and from there they took her in a bus to Shahapura and from there to Puna, wherein accused No.1 committed rape on her. 24. 23. According to the victim – PW11, when she had gone to the land of one Reddy in Maladkal Village for cooli work, all the accused forcibly took her in a vehicle to Devadurga and from there they took her in a bus to Shahapura and from there to Puna, wherein accused No.1 committed rape on her. 24. As per Ex.P1, after the victim was kidnapped by the accused persons and taken to Puna, they took two rooms in a lodge and in one of the rooms, accused No.1 committed rape on her inspite of her resistance. It is further stated that she was then taken to the house of a person and sold for a sum of Rs.1,20,000/- and the accused left her in the said house and went away. She stayed in the said house from 02.01.2011 till 05.01.2011. The said person did not cause any harm to her. Later, he telephoned to the accused and asked them to take her back and thereafter, all the accused took her from the said house to her village in a bus. Accused No.2, then informed her father over phone and then her father came to the bus stand and took her to village. Accused No.2, started frequently threatening victim’s father not to reveal the incident to others etc. 25. It is relevant to see that in the further statement of PW.1 recorded during investigation, by PW.21, she has stated that all the accused have not taken her to Puna and she was not detained in a lodge and not sold to a person in Puna. Though, PW.1 reiterated the statements made in Ex.P.1, the defence has successfully proved by marking Ex.D.1 i.e., the portion of further statement of the victim, recorded by the Investigating Officer - PW.21, that she has denied the said fact that she was forcibly taken by all the accused to Puna from Devadurga and she was detained in a lodge, wherein, accused No.1 committed rape on her and further that she was sold to a person in Puna for a sum of Rs.1,20,000/-. 26. The evidence of PW.1 is not consistent with regard to accused Nos.2 to 4 forcibly taking her to Devadurga and from there to Puna and the accused selling her to a person in Puna. 26. The evidence of PW.1 is not consistent with regard to accused Nos.2 to 4 forcibly taking her to Devadurga and from there to Puna and the accused selling her to a person in Puna. Further, on a careful examination of the evidence of PW.1, though she has stated that the accused thrust clothe into her mouth and she was forcibly taken by the accused persons to Devadurga, she has not stated that she was forcibly taken to Shahapur or Puna from Devadurga. As per her evidence she went in a bus along with the accused and reached Puna on the next day at about 8.30 a.m., and from there she was taken to a Jhopadi and from there to a lodge, wherein, the accused took two rooms and in the said lodge, in one of the rooms, accused No.1 committed rape on her. 27. The prosecution has not conducted any mahazar in the room or lodge, where accused No.1 is alleged to have committed rape on PW.1. The mahazar at Ex.P.6 is drawn in a shed. However, PW.1 has nowhere stated that she was raped by accused No.1 in the shed. The said evidence of PW.1 that she was raped in a lodge room by accused No.1 is contrary to the case of prosecution. The specific case of the prosecution is that she was forcibly taken to Puna and she was kept in a shed and raped by accused No.1. 28. In the light of above discrepancy, it is necessary to look for corroboration to the evidence of PW1, to see as to whether she was subjected to forcible sexual intercourse by accused No.1. 29. Prosecution has got examined PW.13, the doctor who examined PW.1 on 08.04.2011. She has opined that she HC-KAR did not find any external injuries and noticed an old hymeneal tear. She has stated that there is no evidence of semen on garments. The vaginal swab, vaginal smear, cervical swab, cervical smear and her clothes were sent to forensic lab for examination. Based on the FSL report – Ex.P15 and after clinical examination of PW.1, PW.13 has given her opinion stating that there is no evidence of occurrence of rape. 30. The learned Addl. SPP would contend that PW.13 has noticed an old hymeneal tear and therefore, it is evident that PW.1 was subjected to rape by accused No.1. Based on the FSL report – Ex.P15 and after clinical examination of PW.1, PW.13 has given her opinion stating that there is no evidence of occurrence of rape. 30. The learned Addl. SPP would contend that PW.13 has noticed an old hymeneal tear and therefore, it is evident that PW.1 was subjected to rape by accused No.1. He drew the attention of the Court to the evidence of PW.10 who has stated that he has seen both PW.1 and accused No.1 working as coolies in Puna. He therefore, contended that the said evidence clearly show that accused No.1 and PW.1 were living together and PW.1 was subjected to rape by accused No.1. 31. In the cross-examination of PW.13, she has stated that once the rupture of hymen is healed, an estimation of the time when it had taken place cannot be made. When she examined the victim, there was an old rupture and therefore, she cannot say the time of rupture. 32. According to the prosecution the incident took place on 01.01.2011, but till 07.04.2011 there was no complaint lodged against any of the accused. The prosecution case is that since PW.1 was threatened by the accused, no complaint was lodged immediately, which cannot be accepted in view of the fact that not even a missing complaint was filed by the victim’s family. The prosecution has got examined PW.8, father of the victim. He has only stated that after noticing his daughter missing, he enquired with the villagers. He has stated that, accused No.1 was the driver of the vehicle and accused No.2 was the owner of the vehicle. On the date of incident all the four accused were in the said vehicle and they had been to Malladakall to pluck chilli and in the evening at about 7.30 p.m., except his daughter, others returned to the village. Thereafter, he along with others searched for the victim and thought that she might have gone to her native place and searched her for about 4 to 5 days and on the 5 th day they came to know that she was kidnapped by the accused. 33. In view of the inconsistency in the evidence of PW.1, the case of the prosecution that accused No.1 after HC-KAR kidnapping and taking her to puna, committed rape on her cannot be believed. 33. In view of the inconsistency in the evidence of PW.1, the case of the prosecution that accused No.1 after HC-KAR kidnapping and taking her to puna, committed rape on her cannot be believed. Her evidence is not corroborated by any other evidence and material on record. Even otherwise, from the content of victim’s evidence, it can be safely gathered that she was not forcibly taken by accused No.1 to Puna and subjected to forcible sexual intercourse. The offence under Section 376 of IPC is therefore not made out against accused No.1. 34. According to PW.1, all the accused forcible took her to puna, wherein she was confined in a lodge room and accused No.1 committed rape. However, the defence has got marked Ex.D.1(a) to (e), the portions of further statement of PW.1 recorded during investigation, wherein she has stated that she was not taken to puna by accused Nos.2 to 4 and not detained in a lodge and not sold to a person for a sum of Rs.1,20,000/-. Hence, the conclusion arrived by the learned Sessions Judge to acquit accused No.1 for the offence punishable under Section 376 of IPC and accused Nos.1 to 4 for the offence punishable under Section 366 (A) of IPC , cannot said to be either illegal or perverse. 35. The Trial Court has convicted accused Nos.1 to 4 for the offence punishable under Section 363 read with Section 34 of IPC and accused No.2 for the offence punishable under Section 506 (2) of IPC . 36. We find the evidence of PW.1, in view of the inconsistency and lack of corroboration, not believable to hold that even accused Nos.2 to 4 have kidnapped her from the land of one Shasireddy in Maladkal village and took her to Devadurga and from there in a bus to Puna. However, considering the age of the victim, wherein the prosecution has established that she was below the age of 18 years, we have no hesitation to hold that accused No.1 has committed an offence under Section 363 of IPC . Further, the evidence of PW.1 and PW.8 clearly show that accused No.2 has criminally intimidated by threatening them not to disclose the incident. Further, the evidence of PW.1 and PW.8 clearly show that accused No.2 has criminally intimidated by threatening them not to disclose the incident. Hence, the conviction recorded against accused No.1 for the offence punishable under Section 363 of IPC and against accused No.2 for the offence punishable under Section 506 (2) of IPC cannot be found fault with. 37. The Trial Court has sentenced accused Nos.1 to 4 to undergo simple imprisonment for 03 years and to pay a fine of Rs.5,000/- for the offence punishable under Section 363 read with Section 34 of IPC . 38. Since, we find insufficient material to convict accused Nos.2 to 4 for the offence punishable under Section 363 read with Section 34 of IPC , the conviction and sentence passed against the said accused has to be set-aside. Conviction of accused No.1 for the said offence under Section 363 of IPC is proper. 39. The Trial Court has sentenced accused No.2 to undergo simple imprisonment for 01 year and to pay fine of Rs.2,000/-, for the offence punishable under Section 506 (2) of IPC . 40. The incident took place in the year 2011. As per Ex.P.12, the school certificate issued by PW.11, the date of birth of accused No.1 is 04.08.1992. Accused No.1 was therefore, aged about 19 years at the time of incident. 14 years have been lapsed. He was in custody for a period of 02 years 11 months and 27 days. Therefore, we are of the view that the HC-KAR sentence already undergone by accused No.1 is sufficient sentence. 41. Accused No.2 has undergone imprisonment for a period of 32 days during trial. It is submitted that he is aged about 55 years. Sending him to custody at this stage, will not serve any purpose, instead, fine imposed against the said accused can be enhanced. 42. For the foregoing reasons, we pass the following; ORDER i) Criminal Appeal No.200068/2014 is partly allowed. ii) Criminal Appeal No.200111/2014 is dismissed. iii) The judgment of conviction dated 08.04.2014 and order of sentence dated 09.04.2014 passed by the Court of Prl. Sessions Judge, Raichur in S.C.No.10/2012, insofar as convicting and sentencing accused Nos.2 to 4 for the offence punishable under Section 363 read with Section 34 of IPC , is hereby set-aside. iv) The conviction of accused No.1 for the offence punishable under Section 363 of IPC , is hereby confirmed. Sessions Judge, Raichur in S.C.No.10/2012, insofar as convicting and sentencing accused Nos.2 to 4 for the offence punishable under Section 363 read with Section 34 of IPC , is hereby set-aside. iv) The conviction of accused No.1 for the offence punishable under Section 363 of IPC , is hereby confirmed. v) The sentence imposed against accused No.1 for the offence punishable under Section 363 of IPC is modified and he is sentenced to imprisonment for the period already undergone by him and he shall pay fine of Rs.10,000/-, in default of payment, he shall undergo simple imprisonment for a period of 06 months. vi) The conviction of accused No.2 for the offence punishable under Section 506 (2) of IPC , is confirmed. The sentence imposed against him is hereby modified and he is sentenced to imprisonment for the period already undergone by him and he shall pay fine of Rs.10,000/-, in default of payment, he shall undergo simple imprisonment for a period of 03 months.