Important Points
1. When there was no injury on the person and private part of prosecutrix nor it was her case that she was under physical restraint which showed she was consenting party to sexual intercourse conviction for rape was not justified.
2. For conviction under Section 366 kidnapping must be with intent to marry woman against her will or in order to force her to illicit intercourse.

Headnote:(i) Indian Penal Code, 1860-Section 366-Kidnapping woman to compel her marriage-Conviction-Validity of-Allegation that accused forcibly took prosecutrix away and committed rape on her against her will-Evidence of prosecutrix did not indicate that accused kidnapped her with intent to marry with her against her will or to force to illicit intercourse circumstances showed intercourse was with consent-Vital ingredients for conviction not proved-Conviction set aside. (Paras 4, 9 & 11)
       (ii) Indian Penal Code, 1860-Section 363-Kidnapping from lawful guardianship-Conviction-Appeal against-Charge that accused forced prosecutrix into a tempo and at point of dagger took her away-Doctors evidence proved that prosecutrix was below 18 years-No serious dispute that prosecutrix was taken away in tempo-Defence that prosecutrix herself came and sat in tempo-Fact remained that accused carried her away out of lawful guardianship-Offence under Section 363 clearly made out-No error in conviction. (Para 10)
       (iii) Indian Penal Code, 1860-Section 376-Rape-Conviction for -Validity-Charge that accused forcibly took prosecutrix and raped her against her will-No injuries on person including private part of prosecutrix-Conduct showed she was consenting party to sexual intercourse-Further it was not case of prosecutrix that she was under physical restraint - Circumstances negatives forcible intercourse-Conviction not sustainable-Conviction set aside. (Para 11)

Judgment

Kurdukar, J.-Ishwari Mahato and Kuldip Kumar Mahato were tried for offences punishable under Sections 363, 366 and 376 IPC.

2. The trial court found that the evidence adduced by the prosecution could be safely accepted as truthful and accordingly by its judgment and order dated 7.6.1996 convicted Kuldip Mahato-the appellant for offences punishable under Sections 363, 366 and 376 IPC and sentenced him to suffer rigorous imprisonment for five years on first two courts and seven years or third court. Substantive sentences were ordered to run concurrently. However, Ishwari Mahato was convicted under Section 368 IPC and sentenced him to suffer rigorous imprisonment for five years.

3. Aggrieved by the judgment and order of conviction, both the accused preferred an appeal to the High Court and the High Court by its judgment and order dated July 11, 1997 allowed the appeal filed by Ishwari Mahato holding him not guilty and acquitted him of the said charge. The conviction and sentence of Kuldip Kumar Mahato for the offences punishable under Sections 363, 366 and 376 IPC was upheld. It is against these concurrent judgments passed by the courts below, the appellant - Kuldip Kumar Mahato has filed this appeal.

4. It is the case of the prosecution that on 11.2.93 at about 1.00 p.m. Kiran Kumar - (P.W. 3) - Prosecutrix was going to a bazar for purchasing bangles. Kuldip Kumar Mahato on seeing her, asked her as to where she was going. In the meantime, a tempo came from the opposite direction which was stopped by Kuldip Kumar Mahato - the appellant and forcibly made the prosecutrix to sit in the said tempo. After sitting in the tempo, Kuldip Kumar Mahato showed the knife to prosecutrix and threatened her to keep quite. It is then alleged that they got down at Ramgarh and stayed there till 12.2.1993. It is then alleged by the prosecution that during the night of 12.2.1993, Kuldip Kumar Mahato committed the rape on her against her will. On 13.2.93, the brother of Kuldip Kumar Mahato came to the said village and brought them back to Maraikhud. Appellant as well as prosecutrix are resident of the same village and in fact house of the appellant is quite close to the house of prosecutrix. Both were known to each other well.

5. Kiran Kumari, the prosecutrix narrated the incident to her father. Thereupon, a complaint was lodged on 14.2.1993, pursuant to which, offence came to be registered against the appellant and the acquitted accused for the aforesaid offences.

6. Kuldip Kumar Mahato denied the charge and claimed to be tried. We need not deal with the defence of Ishwari Mahato since he has been acquitted by the High Court. It is against this judgment and order of conviction passed by the High Court, the appellant after obtaining special leave has filed this Criminal Appeal.

7. The learned counsel for the appellant contended that Dr. Maya Shankar Thakur (P.W. 5) who examined the prosecutrix admitted during the cross-examination that her age might have been between 17 and 18 years at the time of occurrence and if a margin of error of six months is taken into account, it must be held that the prosecutrix was above 18 on the date of occurrence. We are unable to accept this submission because Dr. Maya Shankar Thakur - (P.W. 2), had emphatically stated that the age of prosecutrix was below 18 years on the date of occurrence. Both the courts below found that the age of prosecutrix was below 18 years. After going through the evidence of Dr. Maya Thakur (P.W. 5) and other material on record, we are of the opinion that this finding needs no interference.

8. Coming to the conviction of the appellant under Sections 363 and 366 IPC, it was contended on behalf of the appellant that the prosecutrix was the consenting party and she had accompanied the appellant of her own will and, therefore, the appellant cannot be convicted for the said offences.

9. As far as conviction under Section 366 is concerned, we find that the evidence of prosecutrix in the

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