H.R. Panwar, J.— This criminal appeal under Section 374(2) Cr. P.C., is directed against the judgment and order dated 10-10-2003 passed by the learned Additional Sessions Judge No. 2, Chittorgarh (for short, “the trial court” hereinafter) in Sessions Case No. 46/2003, whereby the trial court convicted the appellant for the offences punishable under Section 363, 366 and 376 IPC and sentenced him as under :-

Sec. 363 IPC — Five years simple imprisonment and a fine of Rs. 500/- and in default of payment of fine further to undergo one month’s simple imprisonment.

Sec. 366 IPC — Seven years simple imprisonment and a fine of Rs. 500/- and in default of payment of fine further to undergo one month’s simple imprisonment.

Sec. 376 IPC — Ten years simple imprisonment and a fine of Rs. 1000/- and in default of payment of fine further to undergo two months simple imprisonment.

All the substantive sentences were directed to run concurrently. Aggrieved by the impugned judgment of conviction and order of sentence under appeal, the appellant has filed the instant appeal.

2. Briefly stated, the facts of the case, to the extent they are relevant and necessary for the decision of this appeal, are that PW 1 Raj Kumar lodged a report Ext. P/1 with Police Station, Rawatbhata, district Chittorgarh, on 15-3-2003, inter alia, alleging therein that his daughter Seema, aged about 14 years and a student of Class IX, has been missing since 14-3-2003 and despite search and inquiries being made, her where abouts could not be found; he suspects appellant Sita Ram because he has been working as a mason and on inquiry, he too was not found at the place, which creates suspicion as he was in visiting terms to his family. The police registered Crime Report vide Ex. P/2. On 2-4-2003, vide Ex. P/3, the prosecutrix was found and taken in custody by the police. After perusal investigation, the police filed challan against the appellant for the offences noticed above. Charges were framed; the appellant denied the charges and claimed trial. The prosecution adduced evidence by examining as many as 9 witnesses and produced documents Ex. P/1 to Ex.P/11. The appellant made statement under Section 313 Cr. P.C., denied the allegations and in his statement he stated that the prosecutrix was pregnant by some other person, her parents wanted him to marry her, to which he did not agree and, therefore, a false case has been lodged against him. Documents Ex. D/1 to Ex. D/3 were also tendered in defence by the appellant. The trial court, at the conclusion of the trial, on appreciation of the evidence, found the appellant guilty of the offences noticed above and accordingly he was convicted and sentenced as stated at the very out-set.

3. It was contended by the learned amicus curiae appearing for the appellant that the age of the prosecutrix, on the relevant date of occurrence, was more than 18 years the prosecutrix. It was further contended that the prosecutrix voluntarily left her parents house as she was tourchered by her mother which is evident from the letter Ex. D/1 left behind by the prosecutrix at the time of leaving her parents house, it was further contended that the prosecutrix left the house all alone and she was not accompanied by the appellant, even according to the statement of the prosecutrix herself, in a bus from Rawatbhata to Kota.

4. Learned Public Prosecutor appearing for the State supported the judgment of conviction and order of sentence passed by the trial court and contended that even if the prosecutrix was a consenting party, her consent is immaterial as one the relevant date of the occurrence, she was below 16 years of age and in support of his contention, he has relied upon the medical evidence showing her age between 14 to 16 years.

5. I have heard learned counsel for the parties; perused the impugned judgment and other under appeal and also carefully gone through the record, as also scanned, scrutinized and evaluated the evidence